GOLDENBERG, MACKLER, SAYEGH, MINTZ

PFEFFER, BONCHI & GILL

A Professional Corporation
1030 Atlantic Avenue
Atlantic City, New Jersey 08401
Telephone 609 344 7131
Facsimile 609 347 6024
Attorneys for Plaintiffs
SUPERIOR COURT OF NEW JERSEY
LORENZO SHOCKLEY, WAYNE EVANS, LAW DIVISION
ARMOND HARRIS MERCER COUNTY
Plaintiffs
Docket No. MER L 1596 08
vs.
Civil Action
COLLEGE OF NEW JERSEY; RAYMOND
SCULLY, MATHEW MASTROSIMONE
AND KEVIN MCCULLOUGH BRIEF IN OPPOSITION TO
Defendants
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
AND IN SUPPORT PLAINTIFFS’
MOTION FOR PARTIAL SUMMARY
JUDGMENT

PLAINTIFFS’ RESPONSE TO DEFENDANT’S

STATEMENT OF MATERIAL FACTS

1 – 7. Admitted.

8. Admitted that the three individual defendants have jointly retained one attorney,

Joseph A. Carmen, Esquire, to represent them. They have not retained separate attorneys for

each of them.

9. DENIED. The plaintiffs complained of racial discrimination to Donald Gordon,

Associate Director of Human Resources and Vivian Fernandez, Associate Vice-President for

Human Resources, at various times between March 2007 and June 2007. (Exhibit B,

Deposition of Shockley, T199-13 to 200-19; Exhibit D, Deposition of Evans, T70-18 to 73-2;

Exhibit E, Deposition of Harris, T49-20 to 50-6 and T51-2 to 51-7; Exhibit J, Deposition of
Gordon, T53-19 to 54-20). The matter was not promptly referred to the acting Affirmative

Action officer as required by the College’s Anti-Discrimination Policy (Exhibit K, Page 5,

Section IV; Exhibit J, T52-7 to 53-18) It was not investigated at all until Fernandez was

instructed to do so by Vice President Heuring in October 2007. (Exhibit F, T41-10 to 42-20).

10. Admitted that these are some, but not all, of the plaintiffs’ allegations.

11. Admitted that Officer Shockley heard this from Sergeant Fleming, as well as

others. (Exhibit B, T49-16 to 50-19)

12 – 16. Admitted.

17. DENIED. Admitted as to falling asleep in patrol car, as most officers have, but

denied that he was ever disciplined for falling asleep. (Exhibit B, T78-17 to 79-9)

18. Admitted.

19. Admitted.

20. DENIED. Admitted as to Mastrosimone only. The excerpt cited by defendant

indicates that while McCullough may have been present, the verbal exchange only

involved Mastrosimone.

21. DENIED. Admitted as to Mastrosimone only.

22. Admitted.

23. Admitted.

24. DENIED. Shockley testified that he was targeted by the officer. (Exhibit B,

T72-11 to 19)

25. Admitted.

26. Admitted.

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27. DENIED. Initially, Shockley was alone. Security Officer Evans responded on

his own. Police officers Scully and Lacocious did not respond at all even though

they were not on a specific detail at the time. (Exhibit B, T62-24 to 63-4; T64-7

to 19)

28. DENIED. Evans and Harris did not leave their “posts”. The excerpt cited by the

defendant does not support this assertion. In fact, at that time, Evans and Harris

had no “posts”. (Exhibit E, T22-15 to 19)

29. DENIED. Evans and Harris did not leave their “posts”. See response to #28

above.

30. Admitted

31. DENIED. Evans and Harris did not leave their “posts”. See response to #28

above.

32. Admitted that Sergeant Scully “yelled”.

33 – 40. Admitted.

41. DENIED. See response to #9 above.

42 – 44. Admitted.

45. DENIED that Mastrosimone and McCullough were actually suspended, admitted

as to other assertions.

46. Admitted.

47. DENIED.

a) Sergeant Scully does not recall receiving diversity training. (Exhibit G,

T17-6 to 17; 21-1 to 24-10)

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 b) Police Officer Anthony Fresco did not receive diversity training.

(Exhibit L, Deposition of Fresco, T9-21 to 11-15)

c) Security Officer Jaime Nazario did not receive diversity training.

(Exhibit M, Deposition of Nazario, T7-12 to 10-22)

d) Sergeant Marcy Montalvo does not remember receiving diversity

training. (Exhibit N, Deposition of Montalvo, T14-24 to 16-5)

e) Police Officer Shockley does not recall receiving diversity training.

(Exhibit B, T28-2 to 16)

48. DENIED as stated. The excerpt cited by the defendant does not support the

fact(s) asserted. Admitted that shifts were changed to assure that Scully,

McCullough and Mastrosimone did not work with Shockley, Evans, or Harris,

without having another person responsible.

49. DENIED. (Exhibit B, T134-10 to 135-8, T196-8 to 16; Exhibit D, T76-8 to 77-5;

Exhibit E, T62-4 to 63-19, T74-7 to 75-6; Exhibit O, Deposition of James Lopez,

T66-18 to 67-25 and T96-6 to 97-1)

50. DENIED. Defendant did not take prompt and remedial action. See response #9

above. As to additional discriminatory conduct, see response to #49 above and

Exhibit N, Deposition of Sergeant Montalvo, T48-21 to 52-9

51. DENIED. Shockley lost overtime hours. (Exhibit B, T167-24 to 169-7)

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 ADDITIONAL MATERIAL FACTS

Evidence of bad (discriminatory) conduct of which plaintiffs have first hand knowledge.

52. Almost from the beginning of his employment, Shockley was given the “cold

shoulder” by the individual defendants. (Exhibit B, T59-21 to 60-4)

53. Scully would talk to Shockley very rudely and would assign him the harder

tasks on a shift, such as walking detail rather than riding in a vehicle. (Exhibit B, T65-7 to

66-8)

54. Mastrosimone also treated Shockley in a rude and disrespectful manner.

(Exhibit B, 73-9 to 16)

55. From the time Shockley was hired, the individual defendants ignored him,

refusing to even acknowledge his hello or goodbyes when entering and leaving a room.

(Exhibit P, page 9; Exhibit B T148-11 to 150-1)

56. Shockley has been sent on calls without the appropriate back up including an

“assault call” on August 12, 2007. (Exhibit P, page 9; Exhibit O, T91-19 to 92-22)

57. Shockley was addressed by Scully in a manner different from other officers

which was disrespectful and he was yelled at in front of his peers for asking questions.

(Exhibit P, page 9)

58. Shockley was falsely accused by the individual defendants of sleeping on the

job and harassing female students. (Exhibit P, page 9)

59. Police Officer Lopez has witnessed the disparate treatment toward Officer

Shockley, including the failure to answer questions, the failure to interact, and publicly

criticizing Shockley’s police reports. (Exhibit P, page 9; Exhibit O, T33-17 to 34-18 and

T39-9 to 41-21)

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 60. Sergeant Bell also observed that Shockley was treated differently by the

individual defendants when he was hired. (Exhibit P, page 10)

61. Evans and Harris were treated differently by the individual defendants and

without respect, ignored, and given “the invisible man” treatment. (Exhibit P, page 2;

Exhibit E, T62-1 to 63-19 and T65-21 to 67-5 and T72-9 to 75-6)

62. Evans and Harris are publicly reprimanded for actions for which other

security officers would be commended. (Exhibit P, page 2)

63. Evans and Harris were falsely accused by McCullough of sleeping on the job.

(Exhibit D, T42-25 to 46-21)

64. Security Officer Nazario observed that the individual defendants treat

plaintiffs Harris and Evans differently in scrutinizing their work and using a different set of

criteria for assessing their work. (Exhibit P, page 4)

65. The individual defendants “keyed” radio calls from Harris and Evans in order

to intentionally garble their communications. (Exhibit P, page 4; Exhibit M, T18-9 to 19-16;

Exhibit O, T26-18 to 28-4)

Evidence that the discriminatory conduct was race based.

66. Shockley, Harris, and Evans are the only African-Americans working in

Police/Security at TCNJ. (Exhibit B, T32-12 to 33-21)

67. Shockley heard that he was called “Tubbs” when he worked with white

partner, Sergeant Flemings. by McCullough, Mastrosimone, and Scully. (Exhibit B, T41-1to

42-12)

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 68. Shockley heard that a fellow officer (Lacocious) referred to him using “the N

word”. (Exhibit B, T43-3 to 10)

69. Shockley heard that he and Fleming were referred to as “salt and pepper”.

(Exhibit B, T47-18 to 49-3)

70. Scully does not speak rudely to others who are not African-American.

(Exhibit B, T67-24 to 68-10)

71. Sergeant Bell observed that another officer who was not African-American,

(Russomano), who had been hired at the same time as Shockley was welcomed with open

arms, but that Shockley was not. (Exhibit P, page 10)

72. Officer Lopez also observed that Shockley was not treated the same as

Russomano. (Exhibit O, T35-6 to 36-4)

73. The individual defendants referred to Harris and Evans with the derogatory

nicknames “chocolate chips” and “shadows”. (Exhibit O, T20-16 to 23-9; Exhibit P, pages 3

and 4)

74. The individual defendants discussed how they would “catch these fuckers

sleeping”, referring to Harris and Evans. (Exhibit P, page 4)

Evidence of retaliatory conduct.

75. The individual Defendants have continued to treat plaintiffs with anger and

resentment since their Complaints of November 2007. (Exhibit B, T134-10 to 135-8, T196-

8 to 16; Exhibit D, T76-8 to 77-5; Exhibit E, T62-4 to 63-19, T74-7 to 75-6; Exhibit O, T66-

18 to 67-25 and T96-6 to 97-1)

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 76. Shockley has been told by other employees to “watch [his] back because these

guys are after you”, referring to Scully, Mastrosimone, McCullough, and Lacocious.

(Exhibit B, T51-21 to 52-6, T53-6 to 24, and T55-9 to 57-9)

77. Sergeant Montalvo has observed retaliatory conduct by the defendants against

the plaintiffs and the failure of an unequivocal commitment from the top to enforce the anti-

discrimination and anti-retaliation policies of TCNJ. (Exhibit N, T49-23 to 54-3)

Evidence that the complaints of discrimination were not promptly investigated.

78. The defendant’s anti-discrimination policy prohibits

discrimination/harassment based upon race. (Exhibit K)

79. Supervisors are required to immediately refer allegations of prohibited

discrimination/harassment to the agency’s Affirmative Action officer. (Exhibit K, page 5)

80. Early in his career at TCNJ, Shockley went to both Lieutenants Rizzo and Bell

to complain about discriminatory treatment and harassment. (Exhibit B, T106-11 to 107-23)

81. Sergeant Bell reported disparate treatment to Lieutenants Rizzo and Lopez.

(Exhibit P, page 10)

82. Evans had previously reported to Kathy Leveton, director of the police

department, that he had been subjected to racial discrimination. (Exhibit D, T74-4 to 24)

83. The plaintiffs complained of racial discrimination to Donald Gordon,

Associate Director of Human Resources and Vivian Fernandez, Associate Vice-President for

Human Resources, at various times between March 2007 and June 2007. (Exhibit B, T199-

13 to 200-19; Exhibit D, T70-18 to 73-2; Exhibit E, T49-20 to 50-6 and T51-2 to 51-7;

Exhibit J, T53-19 to 54-20).

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 84. The matter was not promptly referred to the acting Affirmative Action officer

as required by the College’s Anti-Discrimination Policy (Exhibit K, Page 5, Section IV;

Exhibit J, T52-7 to 53-18)

85. It was not investigated at all until Fernandez was instructed to do so by Vice

President Heuring in October 2007. (Exhibit F, T41-10 to 42-20).

Evidence that the anti-discrimination policy was not followed and was not effective.

86. Each state agency is required to distribute its policy every year, or a

summarized notice of the policy. (Exhibit K, page 5)

87. The policy was not distributed annually to Donald Gordon. (Exhibit J, T48-10

to 49-1)

88. The policy was not distributed annually to defendant Scully. (Exhibit G, T21-

18 to 22-6)

89. The policy was not distributed annually to defendant Mastrosimone. Exhibit

H, T7-13 to 17)

90. The policy was not distributed annually to Sergeant Montalvo. (Exhibit N,

T13-14 to 14-19)

91. There are no mechanisms in place at The College of New Jersey to monitor

either racial harassment or retaliation. (Exhibit J, T49-8 to 16)

92. Each agency is required to provide all new employees with training on the

anti-discrimination policy and refresher training. (Exhibit K, page 7)

93. Employees Scully, Montalvo, Nazario, Fresco, and Shockley did not recall

receiving new employee training. (See response to #47 above.)

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 94. Each agency is required to provide supervisors with training on a regular

basis. (Exhibit K, page 7)

95. Employee Gordon, Associate Director of Human Resources, did not receive

refresher training in the entire 15 years he was employed. (Exhibit J, T50-12 to 51-11)

96. Defendant Scully did not receive supervisor or refresher training. (Exhibit G,

T23-2 to 24-10)

97. Defendant Mastrosimone did not receive refresher training at any time

between 2002 and 2008. (Exhibit H, T7-9 to 12)

98. Defendant McCullough did not receive refresher training at any time between

2003 and 2008. Exhibit I, T9-25 to 10-8)

99. Even after the findings made by Associate Vice President Fernandez and Vice

President Heuring, defendant Scully was pulled aside by the Chief Collins, Captain Grant,

Lieutenant Lopez, and Sergeant Bell and told by them that the discipline imposed was

unwarranted and the findings were not just. (Exhibit G, T53-1 to 54-12)

100. Even after the findings made by Associate Vice President Fernandez and Vice

President Heuring, defendant Mastrosimone was reassured by Chief Collins and Lieutenant

Lopez he and the other defendants had not done anything wrong and that the discipline that

was meted out was unwarranted and unfair. (Exhibit H, T14-13 to 15-10)

101. Even after the findings made by Associate Vice President Fernandez and Vice

President Heuring, defendant McCullough was told by Chief Collins, Captain Grant, and

Lieutenant Lopez that they felt it was an “injust” [sic] action, didn’t think the whole thing

was right, didn’t think that the anti-discrimination policy had been violated, and that the

discipline was unwarranted. (Exhibit I, T12-17 to 13-8)

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 102. Gordon agreed that if such statements were true they would demonstrate that

there was not an unequivocal commitment from the top to enforce the anti-discrimination

policy. (Exhibit J, T46-3 to 13)

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 PLAINTIFF’S STATEMENT OF MATERIAL FACTS IN SUPPORT OF THEIR
CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

103. As a result of the Fernandez investigation, (Exhibit P), the defendant TCNJ

instituted disciplinary proceedings against defendant Scully. (Exhibit Q)

104. As a result of the Fernandez investigation, (Exhibit P), the defendant TCNJ

instituted disciplinary proceedings against defendant Mastrosimone. (Exhibit R)

105. As a result of the Fernandez investigation, (Exhibit P), the defendant TCNJ

instituted disciplinary proceedings against defendant McCullough. (Exhibit S)

106. All three defendants were specifically found to have violated N.J.A.C. 4A:2-

2.3(a)(9), discrimination that affects equal employment, in response to the complaints filed

by plaintiffs Evans, Harris, and Shockley. (Exhibits Q, R, and S)

107. The defendant TCNJ held hearings, made findings, and imposed discipline

against defendants Scully, Mastrosimone, and Scully. (Exhibits Q, R, and S)

108. This finding of disparate treatment was confirmed by the President of the

College, R. Barbara Gitenstein. (Exhibit T)

109. At various times Scully, Mastrosimone and McCullough were supervisors of

Shockley, Evans and Harris. (Exhibit U, response to First Count, paragraphs #3, #4; Exhibit

G, T21-8 to 17; Exhibit H, T12-9 to 14)

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 LEGAL ARGUMENT

I. Plaintiffs Have Adduced Sufficient Proofs To Establish A Prima Facie Case

Of Racial Discrimination Under The New Jersey Law Against
Discrimination.

A motion for summary judgment should only be granted where no rational juror

could conclude that the plaintiff marshaled sufficient evidence to satisfy each prima facie

element of a cause of action. Godfrey v. Princeton Theological Seminary, 196 N.J. 178,

197 (2008). To demonstrate a “hostile environment” claim a plaintiff need only produce

sufficient evidence from which a jury could conclude that the complained of conduct was

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

abusive working environment. Lehmann v. Toys R Us, Inc., 132 N.J. 587, 608 (1993).

Rather than considering each incident in isolation, courts must consider the cumulative

effect of various incidents, bearing in mind that each successive episode has its

predecessors, that the impact of separate incidents may accumulate, and that the work

environment created may exceed the sum of the individual episodes. A discrimination

analysis must concentrate not on individual incidents but on the overall scenario.

Lehmann, at 607.

In this case the plaintiffs have adduced evidence of conduct of which they have first

hand knowledge that goes well beyond the bounds of mere civility:

1) They have been falsely accused of sleeping on the job (Facts 58 and 63 above);

2) They have had their radio communications intentionally garbled (Fact 65 above);

3) They have been denied appropriate “back-up” when performing dangerous duties

such as “assault calls” (Fact 56 above);

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4) They have been unnecessarily publicly humiliated and reprimanded, in the presence

of school staff and students. (Facts 61, 62 and 64 above)

All of this conduct is in addition to the day to day conduct, which occurred over a period

of years, of refusing to communicate or interact, giving the “cold shoulder” and “invisible

man” treatment, and failing to treat the plaintiffs with appropriate respect as members of

a security force entrusted with protecting college students and staff. That this conduct is

sufficient to create a jury question on the issue of “severe or pervasive” is conclusively

demonstrated by the College’s own investigation, findings, and disciplinary proceedings

against the individual defendants for violation of N.J.A.C. 4A:2-2.3(a)(9), discrimination

that affects equal employment. As succinctly stated by President Gitenstein:

“The investigation revealed that the College’s Policy

Prohibiting Discrimination, Harassment or Hostile
Environments in the Workplace has been violated.
Specifically, the investigation substantiated the allegations
made in your complaint related to a pattern of behavior which
resulted in disparate treatment.” (Exhibit T)

In addition to the first hand knowledge of the plaintiffs set forth above, the plaintiffs

have adduced evidence through other witnesses of the use of derogatory racial nicknames

and epithets which were not used in their presence. The purpose of this evidence is to

demonstrate that the discriminatory conduct experienced by the plaintiffs was race based.

In addition, once they had knowledge that their supervisors were using these terms, it was

reasonable for them to believe the work environment had been poisoned in that the

discriminatory conduct was based on their race.

In light of the above argument, the plaintiffs respectfully submit that they have more

than sufficiently demonstrated first hand knowledge of severe or pervasive discriminatory

conduct and a prima facie case of racial discrimination in violation of the New Jersey

14
Law Against Discrimination. Accordingly, the defendant’s motion on this issue should be

denied.

II. There Are Sufficient Proofs To Demonstrate That TCNJ’s Anti-

Discrimination Policy Was Not Effective, Not Well Publicized, And Not
Followed.

The “Bouton Shield” relied upon by the defendant is the affirmative defense

recognized in Gaines v. Bellino, 173 N.J. 301 (2002). In that it is an affirmative

defense, a material issue of disputed fact on the motion record can deny a defendant

summary dismissal on that defense. Gaines, at 333. Here there are serious material

issues concerning the effectiveness of the College’s policy, and whether it was even

followed:

1) The complaints of the plaintiffs were not promptly investigated

as required;

2) The policy (or summary) was not distributed annually as

required;

3) There was no uniform initial training of new employees as

required;

4) There was no refresher training as required;

5) There are no mechanisms in place at The College of New Jersey

to monitor either racial harassment or retaliation.

6) Even after an investigation, findings, and disciplinary actions by

the College’s Human Resources department, the individual

defendants were reassured by the highest ranking members of

15
 their department that they believed the findings and discipline

were unwarranted and unfair.

Simply put, it is hard to imagine a more fitting example of an anti-discrimination

policy that existed in name only. See Gaines, supra, at 318-319.

Of particular importance is the allegation that the plaintiffs’ complaints of

racial discrimination to Associate Director of Human Resources Donald Gordon and

Associate Vice President Vivian Fernandez, in March – June of 2007, were not

promptly investigated or referred to the acting Affirmative Action Officer. In fact,

Gordon dismissed the complaints because of the perceived consequences the

complaints may have had on the individual defendants. (Exhibit E, T49-22 to 50-6)

The complaints were investigated until Vice President Heuring referred the

complaints made directly to him to Vivian Fernandez, months later, in late October

2007. In light of the above material facts, the defendant’s motion for summary

judgment on the “Bouton Shield” defense should be denied.

III. There Is Sufficient Evidence Of Retaliatory Conduct Under NJLAD.

While conceding the issue of “engaging in protected activity”, the defendant

contends that there is an absence of any evidence of retaliation against the plaintiffs.

There is evidence that Shockley was assigned extra work (Exhibit B, T171-16) and

that he lost overtime assignments. (Fact 51 above) Evans and Harris continue to be

ostracized. (Exhibit D, T76-8 to 77-5; Exhibit E, T62-4 to 63-19, T74-7 to 75-6) The

chief attempted to discipline Shockley in clear violation of the “45 day rule”. (Exhibit

B, T84-15 to 89-15). The plaintiffs have adduced proof of retaliatory behavior, not

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 only from their own testimony (Facts 49, 75 above) but also from the testimony of

Sergeant Montalvo:

Oh. I would think being forced to work for these guys and
promoting any all directly involve with -- that it's kind of
contributory to, you know, Hey, you're saying this is wrong but
yet you're going to force them to be in an uncomfortable almost
hostile work environment on a daily basis. (Exhibit N, T52-3)

and Officer Lopez:

Overall they're treated differently than everyone else. They're

treated more directly or harshly. They're made sure that
they're given their assignments with Officer Nazario. They
will not say a word to him. Still to this day. They won't speak
to him, won't have a conversation with him, won't say hello,
goodbye. (Exhibit O, T96-14)

In light of these proofs, which create material issues of facts on the issue of

retaliation, the defendant’s motion for summary judgment on this issue should be

denied.

IV. There Is Sufficient Evidence Of Willful Indifference By Upper Management

To Support A Claim For Punitive Damages.

In Cavuoti v. New Jersey Transit Corp., 161 N.J. 107 (1999), the Supreme Court

held that a public entity may be liable for punitive damages if there is willful

indifference to the wrongful conduct on the part of upper management, and proof that

the offending conduct is especially egregious. Here there is evidence of

discriminatory behavior, over years, and the failure to follow and enforce even the

basic requirements of the College’s anti-discrimination policy. There is evidence that

Associate Human Resources Director Gordon not only failed to report complaints of

discrimination, but actively sought to squelch the complaints because of the perceived

17
impact it may have on the wrongdoers. (Exhibit E, T49-22 to 50-6) A jury could

determine that this constitutes active participation or willful indifference by the

second highest ranking person within the College’s Human Resources Department.

(Exhibit F, T9-2 to 10-8)

And there is additional evidence of willful indifference:

1) There is evidence that there was no attempt, over a period of

years, to comply with the basic publication and dissemination

requirements of the anti-discrimination policy;

2) There is evidence that there was no attempt, over a period of

years, to provide anti-discrimination training to all new

employees, as required by the policy;

3) There is evidence that there was no attempt, over a period of

years, to provide refresher training to employees, as required

by the policy;

4) There is evidence that there was no attempt, over a period of

years, to provide specific training to supervisory employees, as

required by the policy;

The evidence of the reaction and conduct of Chief Collins, Captain Grant, and

Lieutenant Lopez is especially problematic for the College. There could not be any

clearer evidence of “willful indifference” than the testimony of all three individual

defendants, that the highest ranking officers on the force do not support the findings

and enforcement of the College’s anti-discrimination policy. (Facts 99 – 101 above).

This willful indifference is further supported by the testimony of Sergeant Montalvo,

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 who observed that “stuff gets swept under the rug” by Chief Collins, that enforcement

of the policy is not taken seriously, and that even in light of the complaints and

findings of racial discrimination “they’re just going on about business like it was no

big deal.” (Exhibit N, T49-23 to 54-3)

The question of whether an alleged victim of racial harassment has alleged the

type of reckless or malicious conduct necessary to support an award of punitive

damages must ordinarily be resolved by a jury. Hargrave v. County of Atlantic, 262

F. Supp. 2nd 393, 438 (D.N.J. 2003). In light of the evidence of both “active

participation” and “willful indifference”, the defendant’s motion for dismissal of the

punitive damages claim should be denied.

V. The Doctrine Of Judicial Estoppel Entitles The Plaintiffs To Partial

Summary Judgment On The Issue Of Liability Only As To The First Count
Of The Complaint.

The doctrine of judicial estoppel bars a party to a legal proceeding from arguing a

position inconsistent with one previously asserted in another court or proceeding. State,

Dept. of Law & Public Safety v. Gonzalez, 142 N.J. 618, 632 (1995); Stretch v. Watson, 6

N.J. Super. 456, 469-470 (Ch. 1949). In the disciplinary proceedings instituted against the

individual defendants pursuant to New Jersey Civil Service regulations, the College took the

position that each of the defendants violated N.J.A.C. 4A:2-2.3(a)(9). The defendant TCNJ

held hearings, made findings, and imposed discipline against defendants Scully,

Mastrosimone, and Scully. All three defendants were specifically found to have violated

N.J.A.C. 4A:2-2.3(a)(9), discrimination that affects equal employment, in response to the

complaints filed by plaintiffs Evans, Harris, and Shockley. This finding of disparate

19
treatment was confirmed by the President of the College, R. Barbara Gitenstein. Thus, the

College is precluded from arguing in this matter that the plaintiffs were not discriminated

against by the individual defendants on the basis of the plaintiffs’ complaints of racial

discrimination.

The First Count of the Complaint alleges racial discrimination against the College by

reason of the actions of Scully, Mastrosimone, and McCullough. The College is strictly

liable for violations of NJLAD by supervisory employees. Lehmann v. Toys R Us, Inc.,

supra, at 619-620. Scully, Mastrosimone and McCullough were supervisors of Shockley,

Evans and Harris. Accordingly, the plaintiffs are entitled to partial summary judgment as to

liability only on the First Count of their Complaint.

CONCLUSION

In light of the foregoing argument, the defendant’s motion should be denied in its

entirety and the plaintiffs are entitled to partial summary judgment as to the First Count of

the Complaint on their cross-motion.

GOLDENBERG, MACKLER, SAYEGH, MINTZ,

PFEFFER, BONCHI & GILL
Attorneys for Plaintiff(s)

By: __________________________________
MARK PFEFFER, ESQUIRE
Dated: September 2, 2010

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