In March 2020, Deputy Chief Pietro Martino of the Plainfield Fire Department in New Jersey taught a course on COVID-19. Timothy Burkhardt, a firefighter of Asian descent, fell asleep during the class. Martino took this opportunity to mock Burkhardt, asking him if he “just got back from Wuhan, and squinted his eyes to mimic the facial characteristics of some Asian persons.” About 20 firefighters, including a battalion chief and five lieutenants, witnessed the incident.
Burkhardt alerted his union president and vice president, who forwarded his complaint to Fire Director Kenneth Childress. Childress requested that Burkhardt submit a description of the incident in writing; Burkhardt complied, and Childress let him know that the complaint was being forwarded to human resources. In the meantime, Burkhardt’s battalion chief indicated that he would not have to take part in any other trainings where Martino was present, and an investigation into Martino began. By April 2020, Burkhardt was informed that Martino would be disciplined, though Martino was never served with a formal letter of reprimand.
In July 2020, Burkhardt brought a claim against Martino and the City under the New Jersey Law Against Discrimination. Initially, the City and Martino’s motion for summary judgment failed, as the trial court found that “material facts were in dispute, including whether Martino’s comment was made based on Burkhardt’s race and whether this one-time incident constitutes severe and pervasive discrimination.” After granting motion for reconsideration, the trial court reversed its previous decision and found that Burkhardt had not established a hostile work environment claim, because the City “had an effective anti-discrimination policy and enforced that policy promptly.”
Burkhardt appealed and the Superior Court of New Jersey, Appellate Division affirmed the ruling of the trial court: “The City promptly investigated the incident and determined that Martino’s conduct was inappropriate and deserving of discipline. Burkhardt’s argument that the City’s anti-discrimination policy was ineffective because other firefighters attending the training program did not report the discriminatory conduct does not persuade us. Nor does Burkhardt’s contention that the affirmative defense was not established because the reprimand letter was never served on Martino. The record shows Martino was on terminal leave and did not return to duty. The failure to transmit the reprimand letter to an employee who was already on terminal leave does not alter the fact that the City promptly determined Martino’s conduct was inappropriate and deserving of discipline.
“Because Martino was no longer an active member of the force, it is reasonable to assume Martino would have no further contact with Burkhardt at the workplace. Furthermore, the failure to transmit the reprimand letter in these circumstances does not signal that the City would tolerate future workplace discrimination or otherwise fail to enforce its anti-harassment and discrimination policy.”
Timothy Burkhardt v. City of Plainfield & Deputy Chief Pietro Martino, 2024 WL 4647754 (N.J. Super. Ct. App. Div. 2024).