CARMICHAEL v. THOMSON et al
Filing
202
OPINION. Signed by Judge Jerome B. Simandle on 9/27/2018. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ANTHONY CARMICHAEL,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.
Civil No. 14-3323
(JBS-AMD)
JOHN SCOTT THOMSON, et al.,
Defendants.
APPEARANCES:
Cheryl L. Cooper, Esq.
LAW OFFICES OF CHERYL L. COOPER
342 Egg Harbor Road, Suite 1-A
Sewell, NJ 08080
-andPaul D. Brandes, Esq.
VILLARI BRANDES & GIANNONE, PC
8 Tower Bridge
161 Washington Street, Suite 400
Conshohocken, PA 19428
Attorneys for Plaintiff
Christine O’Hearn, Esq.
BROWN & CONNERY, LLP
360 Haddon Avenue
Westmont, NJ 08108
Attorney for County Defendants
Daniel Edward Rybeck, Esq.
John C. Eastlack, Jr., Esq.
Lilia Londar, Esq.
WEIR & PARTNERS
250 Fries Mill Road, 2nd Floor
Turnersville, NJ 08012
Attorneys for City Defendants
OPINION
SIMANDLE, District Judge:
INTRODUCTION
Plaintiff Anthony Carmichael (hereinafter, “Plaintiff”)
brought this employment action against Defendants City of
Camden, County of Camden, and John Scott Thomson, Orlando
Cuevas, Michael Lynch, Louis Vega, Joseph Wysocki, and J.L.
Williams, in their official capacities as employees of the City
of Camden, the County of Camden, or both (collectively,
“Defendants”). Plaintiff, formerly a Lieutenant in the Camden
City Police Department and now a Captain in the Camden County
Police Department, generally alleges that Defendants engaged in
retaliation against him based on protected activity in violation
of the New Jersey Conscientious Employee Protection Act, the New
Jersey Law Against Discrimination (“NJLAD”), the New Jersey
State Constitution, the First Amendment of the United States
Constitution, and 42 U.S.C. § 1983 and/or race discrimination in
violation of NJLAD and § 1983. This Opinion addresses only
Plaintiff’s claims against County Defendants for allegedly
discriminating and/or retaliating against Plaintiff by failing
to promote him to Captain during or soon after the formation of
the Camden County Police Department in May 2013 and does not
address any of Plaintiff’s claims against City Defendants.1
1
The Amended Complaint contains two distinct components:
2
This matter comes before the Court on County Defendants’
motions for summary judgment on Counts Eleven, Twelve, Thirteen,
and Fifteen of the First Amended Complaint. (Motion for Summary
Judgment (hereinafter “County Defs.’ Mot.”) [Docket Item 63].)
County Defendants also seek to strike the Declaration of Darnell
Hardwick and exhibits in Plaintiff’s papers submitted in
(1)
Counts One, Two, Three, Four, Six, Seven, Eight, and
Nine allege discrimination and/or retaliation by the
City of Camden and Chief John Scott Thomson, Deputy Chief
Orlando Cuevas, Deputy Chief Michael Lynch, Louis Vega,
Joseph Wysocki, and J.L. Williams in their capacities as
former employees of the City of Camden and City of Camden
Police Department (collectively, “the City Defendants”),
for transferring Plaintiff out of his position as
“acting Captain” of the Camden City Police Internal
Affairs, forcing him to work midnight and work split
shifts, assigning him to supervise those identified by
the administration as “problem” officers, requiring him
to attend meetings without overtime compensation,
assigning him a schedule where he was the only officer
in the Camden City Police Department forced to work every
weekend, and unfairly writing up and/or disciplining him
after he objected to the City Defendants’ instructions
to violate the Attorney General Guidelines; and
(2)
Counts Eleven, Twelve, Thirteen, and Fifteen allege
discrimination and/or retaliation by Defendants County
of Camden, County Police Chief Thomson, Deputy Chief
Cuevas, Deputy Chief Lynch, and Louis Vega, in their
capacity as employees of the County of Camden and County
of Camden Police Department (collectively, “County
Defendants”), for skipping over Plaintiff and failing to
promote him to Captain sooner.
(Amended Complaint [Docket Item 26].) The Court previously
dismissed Counts Five, Ten, and Fourteen for failure to state a
claim upon which relief may be granted, and those claims are not
part of the operative Amended Complaint. (See Opinion [Docket Item
20], Mar. 6, 2015 at 24-28; Order [Docket Item 21], Mar. 6, 2015,
1-2.)
3
opposition to County Defendants’ motion for summary judgment.
(Motion to Strike [Docket Item 138].)
The principal issues to be decided are, discovery having
been concluded, whether there are genuine issues of material
fact from which, giving all reasonable inferences to Plaintiff,
a jury could reasonably find that County Defendants failed to
promote Plaintiff to the rank of Captain in the Camden County
Police Department due to race discrimination or due to
retaliation in violation of his First Amendment rights. For the
reasons discussed below, the motion for summary judgment will be
granted in part and denied in part.
Defendants’ Motion to Strike Hardwick Declaration and
Exhibits
As a preliminary matter, the County Defendants’ motion to
strike the Declaration of Darnell Hardwick and exhibits in
Plaintiff’s papers submitted in opposition to County Defendants’
motion for summary judgment, (Motion to Strike [Docket Item
138]), shall be granted in part and denied in part.
Plaintiff Carmichael includes a Declaration by Darnell
Hardwick [Docket Item 75-8] plus numerous documents attached
thereto as Exs. 1-27. Mr. Hardwick is President of the Camden
County NAACP branch and has been a Civil Service employee since
1981 and a union shop steward for Local 1032 of the
Communications Workers of America (Hardwick Dec. ¶ 1), but he
4
has had no personal involvement with the matters in dispute in
this case other than in reviewing and gathering documents and
holding meetings and “hav[ing] personal interaction with”
Plaintiff and other Camden City Police Dept. union officials and
members of the former Camden City Police Dept., in his capacity
as President of the Camden County NAACP. (Id. ¶¶ 1-3.) He has
reviewed discovery and certifications of witnesses in this case
and argues in his declaration why he believes some statements
are false or incredible or contradicted by other statements or
documents he has gathered or reviewed. He also expresses
numerous opinions that the processes employed for recruiting and
hiring officers and superior officers, as well as for
Intergovernmental Transfers, did not comport with the Camden
County Defendants’ various constitutional, statutory, and New
Jersey Civil Service requirements.
The Camden County Defendants seek to strike the Hardwick
Declaration and its attached documents in their entirety on two
grounds: (1) That Plaintiff failed to identify Mr. Hardwick in
his Rule 26 pretrial disclosures as a person with knowledge or
information related to the County Defendants and Plaintiff
produced none of the attached documents in discovery, which
ended on March 31, 2016 as to the Camden County Defendants
(extended to April 8, 2016 for the limited purpose of conducting
the deposition of plaintiff); and (2) that the Hardwick
5
Declaration violates Fed. R. Civ. P. 56(c) and L. Civ. R. 7.1
because it is fraught with argument and opinion. While opinion
testimony of an expert witness is permitted in an affidavit
opposing summary judgment, there is no dispute that Plaintiff
does not identify Mr. Hardwick as an expert nor does Plaintiff
seek to qualify him as an expert under Rule 702, Fed. R. Ev.
Plaintiff concedes that he did not identify Mr. Hardwick as
a person with knowledge as to Carmichael’s claims against the
County Defendants, but that he identified Hardwick as a person
with relevant knowledge as to the Camden City Defendants, some
of whom, in their new official capacities, are also sued as
Camden County Defendants. [P. Opp., Docket Item 158 at 1-2.] In
fact, as Defendants point out, the sole mention of Mr. Hardwick
during the entire time of factual discovery in this case was
contained in Plaintiff’s Rule 26 Disclosures, dated and served
November 13, 2015, which stated in relevant part:
The
following
have
knowledge
and/or
information regarding illegal practices by
City of Camden, the City of Camden Police
Department with respect [to] discipline and/or
harassment and/or discrimination.
. . .
Darnell Hadwick [sic] -- Camden NAACP.
[Pl. Rule 26 Disclosures at p.5, attached to Certification of
Benjamin S. Teris, Esq. at Ex. A (Docket Item 138-1)]. The Court
agrees with Defendant that nothing in Plaintiff’s Rule 26
Disclosures placed the Camden County Defendants on notice that
6
Mr. Hardwick had knowledge about the Camden County Defendants
related to this case. Furthermore, if during the course of
discovery Plaintiff wished to modify his description of Mr.
Hardwick’s knowledge, Plaintiff had the duty to supplement his
disclosures in a timely fashion and did not do so. Also,
Plaintiff had the duty to timely produce all relevant documents
required by Rule 26(a)(1), including those attached to the new
Hardwick Declaration, none of which were produced in discovery
in this case according to Camden County’s attorney Mr. Teris
(see Teris. Cert. at¶ 14.)
Plaintiff asserts that his counsel’s use of the Hardwick
Declaration and documents in opposition to the County
Defendants’ present summary judgment motion on December 30,
2017, which was 20-plus months after the April 18, 2016,
conclusion of factual discovery on the claims against the Camden
County Defendants, was not as late as it appears. Plaintiff
points out that his counsel had earlier provided the Court and
the County Defendants with the Hardwick Declaration and attached
documents on February 1, 2017, after the Court had found that
Plaintiff had defaulted on his opportunity to oppose the present
motion for summary judgment. Plaintiff sought reconsideration of
this Court’s order denying a further extension of his deadline
for submitting opposition and attached the Hardwick Declaration
on February 1, 2017 (it is dated January 24, 2017) [Docket Item
7
75-3], as an example of reasons why Plaintiff had substantial
opposition and should be given a last chance to put it forward
notwithstanding his counsel’s tardiness. [See Docket Item 7551]. The Court did not parse the specific contours of the
Hardwick Declaration and its attachments nor of the other
explanatory materials, leaving that until the actual summary
judgment phase. The Court granted reconsideration as a matter of
compassion in light of Plaintiff’s counsel’s medical or other
personal needs, not because the Hardwick Declaration was
particularly compelling. [Order filed Dec. 15, 2017 (Docket Item
123)].
Be that as it may, Plaintiff’s introduction of the Hardwick
Declaration on February 1, 2017, was itself untimely by almost
ten months after the close of Camden County Defendants discovery
on April 8, 2016, and it came five months after the Camden
County Defendants filed for summary judgment. Indeed, despite
naming Mr. Hardwick as a person with knowledge as to
discrimination by the Camden City Policy Department two years
earlier, Plaintiff’s attorney did not even speak with him until
January 5, 2017. (Docket Item 158 at 4, n.5).
The consequence of failing to provide facts and documents
in discovery, when required in Pretrial Disclosures or
discovery, is that such evidence cannot be used in opposition to
summary judgment. Rule 37(c)(1), Fed. R. Civ. P. makes this
8
obligation clear, providing: “If a party fails to provide
information or identify a witness as required by Rule 26(a) or
(e) . . . the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or
harmless.” The rules impose serious continuing obligations of
disclosure of a party’s case so that discovery can be focused
and this expensive and time-consuming aspect of litigation can
be focused and brought to a reasonable and fair conclusion. The
exclusion of such evidence is meant to be “self-executing”
according to the Advisory Committee Note accompanying enactment
of the current version of Rule 37(c) in 1993. According to the
Advisory Committee, “[t]his automatic sanction provides a strong
inducement for disclosure of material that the disclosing party
would expect to use as evidence, whether at a trial, at a
hearing or on a motion, such as one under Rule 56.” Yet
Plaintiff’s counsel here nonchalantly downplays this obligation
by arguing that the Camden Defendants could have questioned
Plaintiff Carmichael at deposition about his knowledge of any
documents or information possessed by Mr. Hardwick. [Pl. Opp.
(Docket Item 158) at 3-4]. This is a bizarre suggestion given
that the Camden Defendants took Carmichael’s deposition by April
8, 2016, and Plaintiff’s counsel herself didn’t bother to even
speak with Mr. Hardwick about this case, according to her
9
letter-brief, until January 5, 2017. [Id. at 4, n.5]. Plaintiff
must fulfill discovery obligations by providing timely and
complete discovery, not be expecting opposing counsel to go on a
treasure hunt for the hidden contentions and facts.
The use of Mr. Hardwick as a witness against the County
Defendants, as well as the use of the new records he has
attached, is precluded unless Plaintiff shows that the failure
to identify the witness and offer his opinions and documents was
“substantially justified or harmless.” Rule 37(c)(1), Fed. R.
Civ. P. Plaintiff’s failure here was neither substantially
justified or harmless. Plaintiff’s counsel apparently did not
investigate her own client’s claim until after discovery was
over; Plaintiff took no discovery and did not speak with Mr.
Hardwick or review the documents he collected, despite knowing
of his existence, until almost three years after filing the
Complaint, while the County Defendants diligently pursued
discovery and timely filed their motion for summary judgment.
The County Defendants have been harmed by these delays and false
starts, when they have a right to rely upon the completeness and
integrity of Plaintiff’s disclosures as they formulated their
summary judgment motion in 2016. They have also been prejudiced
by having to deal with this issue of Plaintiff’s continuing
delays through several additional briefings and letters to the
Court. While exclusion of the unidentified witness Mr. Hardwick
10
and the contents of his opinions is fully justified, the Court
reaches a different conclusion regarding the Hardwick documents
that come from the public record; such documents were equally
available to the County Defendants and may shed important light
on the issue of the County’s delay in promoting Plaintiff
Carmichael to the rank of Captain.
The County’s witnesses are in a position to address these
documents, if necessary, and they shall not be excluded on the
ground of Plaintiff’s late production. As public documents, the
items attached to the Hardwick Declaration as Exs. 2, 3, 4, 5,
6, 7, 9, 10, 12, 13, 14, 15, 16, 17, 19, 20, 22, 23, 24, 25, and
27 appear to come from public sources, including the County
itself.
The Court has likewise considered the prudential factors
for exclusion of evidence for discovery failures articulated in
Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 148 (3d Cir.
2000) (upholding preclusion of evidence of future lost earnings
where plaintiff failed to provide discovery concerning posttermination employment). The Nicholas case indicates four
factors to consider, namely: (1) the prejudice or surprise of
the party against whom the evidence would have been admitted;
(2) the ability of the party to cure that prejudice; (3) the
extent to which allowing the evidence would disrupt the orderly
or efficient trial of the case; and (4) bad faith or willfulness
11
in failing to comply with a court order or discovery obligation.
Nicholas, 227 F.3d at 148. Additionally, the Court of Appeals in
Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719 (3d Cir.
1997), has indicated two additional considerations: (5) the
importance of the excluded testimony; and (6) the parties
explanation for failing to disclose. The Court finds that (1)
the County Defendants are prejudiced and surprised – they had
filed their summary judgment motion, obviously a heavy-duty
task, and awaited the tardy opposition of Plaintiff, only to
learn months later of this undisclosed witness and his
investigation; (2) Defendants have no ability to cure the
prejudice if Mr. Hardwick were permitted as a witness discussing
his investigation and findings, requiring reopening of discovery
long since closed and eventually redrafting of a second summary
judgment motion; on the other hand, the County has the capacity
to assimilate the documents under its pretrial planning, and the
County could be given time to identify any rebuttal documents;
(3) disruption of trial is not a concern because the case is not
at trial; (4) Plaintiff’s counsel’s performance has been
sporadic and troubling in this case, exhibiting a tendency to
blame defense counsel for litigation problems of her own making;
(5) the importance of the excluded testimony of Mr. Hardwick is
not great, assuming Plaintiff has identified other witnesses
with knowledge of the alleged events; and (6) Plaintiff’s
12
counsel’s excuses, as discussed above, are less than compelling;
while accommodation is given to Plaintiff’s counsel’s health
challenges, including the ability to even present opposition to
this summary judgment motion, the fundamental demands of
litigating a case counsel has brought and pursues over three
years cannot be discarded like mere suggestions. On balance, the
provision for automatic exclusion of Mr. Hardwick as a witness
in Plaintiff’s case against the County Defendants is wellwarranted, while the exclusion of the public documents on
grounds of their late production would not be warranted. (The
Court does not determine their admissibility into evidence at
this time.)
Similarly, Defendants’ objection to the form of Mr.
Hardwick’s Declaration is also well taken.
The nature of Mr. Hardwick’s testimony is also
objectionable. Plaintiff seeks to rely on many purported expert
opinions, arguments, or legal conclusions by Mr. Hardwick, who
has no academic background or experience in law enforcement and
who has not been certified as an expert witness in this case.
Cf. Yazujian v. PetSmart, 729 F. App’x 213, 215–16 (3d Cir.
2018) (holding that the district court did not abuse its
discretion in declining to permit witness to testify as an
expert in retail safety where the proposed witness had no
13
relevant academic background, relevant training, or relevant
work experience, other than as a stock clerk).
The Hardwick Declaration expresses opinions on police
officer qualifications, police personnel records, Civil Service
Commission records and rules, and the credibility of other
witnesses’ statements. Not only are such opinions regarding
specialized matters of personnel rules and practices
inadmissible because Mr. Hardwick has not been identified as an
expert under Rule 702, but they also may not be presented, as
many are here, as legal arguments and conclusions in an
affidavit or declaration pursuant to Local Civil Rule 7.2(a),
which provides in relevant part:
[D]eclarations . . . shall be restricted to
statements of fact within the personal
knowledge of the signatory. Argument of the
facts and the law shall not be contained in
such documents. Legal arguments and summations
in such documents will be disregarded by the
Court and may subject the signatory to
appropriate censure, sanctions or both.
L. CIV. R. 7.2(a). A few examples of improper opinions and legal
conclusions in the Hardwick Declaration suffice to prove the
point:
•
Paragraph 5: “The Certification of Defendant
Michael Lynch, from the Carmichael matter
contains numerous inaccurate statements which
are verified by the documents attached to my
Declaration.”
14
•
Paragraph 6: “Some of the representations of
by the County Defendants in both the
Carmichael and Sosinavage matters also are not
accurate or truthful and are proven inaccurate
through the documents I have provided to
Plaintiffs’
counsel
in
preparing
my
declaration.”
•
Paragraph 9: “When the County wanted to
establish the CCMPD, in order to avoid the
Civil Service Rules for hiring and promotions,
they were forced to apply to the CSC for a
‘pilot program.’”
•
Paragraph 13: “However, the CSC Pilot Program
Order
does
contain
a
provision
which
prohibited ‘rank jumping,’ and included an
example of prohibited promotions.”
•
Paragraph 31: “This is consistent with the
provisions of N.J.A.C. 4A:4-7.1(A)(b).”
•
Paragraph 35: “The representation by Mr.
Goldberg, to the Court in that matter was
inaccurate.”
•
Paragraph 62: “Neither of these
individuals were PTC certified.”
•
Paragraph
64:
“Upon
receipt
of
these
documents,
I
reviewed
the
content
and
determined that all 8 of these applicants were
not PTC certified at the time of hire; had no
prior
police
experience;
and
were
all
civilians, forcing the CCMPD to pay for and
have these individuals trained at the Police
Academy. According to my review, each of these
eight (8) individuals did not meet the
requirements
for
hire
under
the
Pilot
Program.”
•
Paragraph 65: “Each of these 8 individuals
were younger than 40 years of age, and none
were PTC certified. These individuals were
hired by CCMPD over former Camden City Police
Officers who had applied for employment with
15
two
(2)
the CCMPD prior to the dissolution of the
Camden Police Department, and during the Pilot
Program.”
•
Paragraph 71: “Each of the three (3) above
officers identified above, Sandrock, Kunkle,
and DeSantis, were and are younger than
Plaintiff Sosinavage, and less qualified than
Sosinavage.”
(Hardwick Declaration [Docket Item 75-8].) In accordance with
Local Civil Rule 7.2(a) and Federal Rule of Civil Procedure
56(e) (requiring that a declaration filed in connection with a
motion for summary judgment must “be made on personal
knowledge”), the Court will exercise its discretion to disregard
all expert opinion, argument, or legal conclusions in the
Hardwick Declaration.
An appropriate order will be entered granting the Camden
County Defendants’ motion to strike Mr. Hardwick’s declaration
in opposition to their summary judgment motion, but denying the
motion to strike the documents consisting of public records
attached to the Hardwick Declaration.
BACKGROUND2
The motions pending before the Court were brought by County
Defendants and do not address any of the allegations against
For purposes of the instant motion and pursuant to Local Civil
Rule 56.1, the Court looks to the Amended Complaint [Docket Item
26] when appropriate, County Defendants’ Statement of Undisputed
Material Facts [Docket Item 63-1], Plaintiff’s Response to
Statement of Material Facts [Docket Item 128], and public documents
attached to the Hardwick Declaration to the extent determined in
2
16
City Defendants. (County Defendants’ Brief in Support of Motion
for Summary Judgment (hereinafter “County Br.”) [Docket Item
63-2], 8 n.1.) Accordingly, the Court recounts only those
portions of the factual the procedural history relevant to
Plaintiff’s failure-to-promote claims against County Defendants.
A.
Factual Background
1.
Plaintiff Anthony Carmichael
Plaintiff is an African-American male. (Deposition of
Anthony Carmichael (hereinafter “Pl.’s Dep.”) [Docket Item
63-12], 17:2-4; 88:11-13.) He was hired by the Camden City
Police Department in 1994 and promoted to Lieutenant in 2003.
(Pl.’s Dep. [Docket Item 63-12], 12:22 14:19-21;
Intergovernmental Transfer Agreement [Docket Item 63-4].) In
July 2008, Plaintiff was assigned to Internal Affairs as an
“acting Captain,” but was subsequently transferred out of
Internal Affairs in or around April 2009 and was ultimately
reassigned to Special Operations as a Lieutenant. (Amended
Complaint [Docket Item 26], ¶¶ 21, 104, 108-09, 111-12.) On
January 30, 2013, Plaintiff applied to become a Captain in the
soon-to-be-formed Camden County Police Department, discussed
infra. (Employment Application [Docket Item 63-14], 10 on the
docket.) On April 15, 2013, Plaintiff was transferred to the
Part II, above. Where not otherwise noted, the facts in this
section are undisputed by the parties.
17
Camden County Police Department as a Lieutenant.
(Intergovernmental Transfer Agreement [Docket Item 63-4], 1;
Pl.’s Dep. [Docket Item 63-12], 17:2-4.) Plaintiff’s salary when
he left the City Police Department was $101,545; upon his
transfer, his salary was $104,070. (Intergovernmental Transfer
Agreement [Docket Item 63-4], 1-2.)
On March 18, 2018, Plaintiff was promoted to Captain and
received a pay raise. (County Letter Brief [Docket Item 162],
1.) According to the new Civil Service List of Eligibles,
Plaintiff would have ranked seventh had he not been promoted
prior to issuance of the list. (Id.)
2.
Formation of the Camden County Police Department
and the Pilot Program
On August 25, 2011, the City of Camden, the County of
Camden, and the State of New Jersey entered into a Memorandum of
Understanding, whereby the County of Camden agreed to create a
Camden County Police Department that would offer police services
to municipalities within Camden County, including the City of
Camden. (See Memorandum of Understanding [Docket Item 63-5].)
The Camden County Board of Chosen Freeholders subsequently
authorized the creation of the County Police Department pursuant
to N.J.S.A. 40A:14-106. (See Camden County Resolution [Docket
Item 63-6].)
18
On December 27, 2012, the New Jersey Civil Service
Commission approved the City of Camden’s proposed plan for
laying off all uniformed police officers in the Camden City
Police Department by April 30, 2013. (See Letter [Docket Item
63-7], Dec. 27, 2012, 1.) This layoff plan was approved by the
Camden City Council on January 4, 2013. (See Camden City
Resolution [Docket Item 63-8].) On April 30, 2013, all Camden
City Police Officers were officially laid off and the Camden
City Police Department was dissolved. (See id. at 2.) The Camden
County Police Department assumed all police functions in the
City of Camden the following day, on May 1, 2013. (See Police
Services Agreement [Docket Item 63-9].)
By civil service order, the Camden County Police Department
established a pilot program for filling positions (hereinafter,
the “Pilot Program”). (See Civil Service Order [Docket Item 6310], 15.) The Pilot Program required that candidates for
promotions within the County Department “satisfy the minimum
requirements for the promotional title.” (Id.) Job
specifications for County Police Captain positions required
candidates to have at least three years of “supervisory police
experience” and a high-school diploma. (County Police Captain
Job Specification [Docket Item 63-16], 1-2.) During the Pilot
Program, which lasted from November 1, 2012 to October 31, 2013,
Defendants Thomson and Lynch made final recommendations for
19
hiring on all positions and promotions within the Camden County
Police Department, subject to formal approval by the Camden
County Board of Chosen Freeholders. (See Civil Service Order
[Docket Item 63-10], 3; Lynch Cert. [Docket Item 63-11], ¶ 8;
Thomson Cert. [Docket Item 63-17], ¶ 6.)
3.
Camden County Police Captain Promotions
Following the formation of the Camden County Police
Department, there were three separate programs for promotions to
Camden County Police Captain: (1) promotions during the Pilot
Program; (2) provisional promotions to Police Captain based on
applications from within the County Police Department
(hereinafter, the “Provisional Process”), and (3) promotions
from the 2015 Civil Service Examination. (Thomson Cert. [Docket
Item 63-17], ¶ 4.) On March 18, 2018, Plaintiff was promoted to
the rank of Captain by the Camden County Police Department.
(County Letter Brief [Docket Item 162], 1.)
a.
The Pilot Program
During the Pilot Program, Officers Joseph Saponare, David
Suarez, Deiter Tunstall, and Albert Handy were promoted to
Captain. (County Br. [Docket Item 63-2], 7; Lynch Cert. [Docket
Item 63-11], ¶¶ 21-22, 28-29, 35-36; Thomson Cert. [Docket Item
63-17], ¶ 16.) Handy received his promotion on October 28, 2013
(Thomson Cert. [Docket Item 63-17], ¶ 16), while Saponare,
Suarez, and Tunstall were hired on April 8, 2013. (County Br.
20
[Docket Item 63-2], 7; Lynch Cert. [Docket Item 63-11], ¶¶ 2122, 28-29, 35-36.) Defendants Lynch and Thomson, who made final
recommendations on all four officers as part of the Pilot
Program, assert that they made those recommendations based on,
inter alia, the officers’ “success as supervisor[s] of uniformed
officers,” “demonstrated leadership abilities,” and “established
mentorship and development of subordinate officers.” (Lynch
Cert. [Docket Item 63-11], ¶¶ 24, 31, 38; Thomson Cert. [Docket
Item 63-17], ¶ 19.)
b.
The Provisional Process
During the Provisional Process, Officers Gabriel Camacho
and Alexsandro Ibarrondo received promotions to the provisional
position of Police Captain through the Provisional Process. (See
Thomson Memorandum [Docket Item 63-19]; Ibarrondo Personnel
Action Form [Docket Item 63-20]; Camacho Personnel Action Form
[Docket Item 63-21].) Plaintiff was told that, to qualify for
the Provisional Process, he had to submit an application;
however, Plaintiff decided not to apply through the Provisional
Process because he “decided [to] just go take the [Civil
Service] test [for non-provisional promotions].” (Pl.’s Dep.
[Docket Item 63-12], 60:23-62:18.)
c.
2015 Civil Service Examination
Three permanent Captain positions became available prior to
(or after) the 2015 Civil Service Examination and Officers
21
Richard Verticelli, Camacho, and Ibarrondo received the first-,
second-, and third-highest scores, respectively, and were
promoted to the rank of Captain. (See Civil Service Promotion
List [Docket Item 63-22]; Pl.’s Dep. [Docket Item 63-12], 49:49.) Plaintiff finished in a tie for third with Ibarrondo on the
Examination, but was ranked fourth on the list to make Captain
because Officer Ibarrondo had military experience, a tiebreaker
on the Civil Service Examination. (See id.) Plaintiff was not
promoted to Captain at this time.
B. Procedural History
Prior to the 2011 decision to form the Camden County Police
Department, on April 20, 2010, Plaintiff and a fellow City
Police Officer, Lieutenant John A. Sosinavage, filed a lawsuit
in New Jersey Superior Court against the City Defendants. (See
Superior Court Complaint [Docket Item 63-13].) In the Superior
Court action, Plaintiff and Lt. Sosinavage claimed that the City
Defendants retaliated and discriminated against them by, inter
alia, transferring them out of Internal Affairs, forcing them to
work split shifts, requiring them to attend meetings without
overtime compensation, and demeaning them in front of peers
after they objected to the City Defendants’ instructions to
violate the Attorney General Guidelines. (Id. at ¶¶ 88-90.) The
Superior Court complaint was dismissed without prejudice.
(Plaintiff’s Response to Statement of Material Facts [Docket
22
Item 128], ¶ 18; see also Letter [Docket Item 83], Mar. 9, 2017,
2.)
On May 27, 2014, Plaintiff refiled his claims in federal
court against the City of Camden, the County of Camden, and
Officers John Scott Thomson, Orlando Cuevas, Michael Lynch, and
Louis Vega in their individual and official capacities as
employees of both the City of Camden and County of Camden.
(Complaint [Docket Item 1].)3 With leave of the Court, (Order
[Docket Item 21], Mar. 6, 2015), Plaintiff filed the Second
Amended Complaint on October 9, 2015. (Amended Complaint [Docket
Item 26].)
On September 15, 2016, County Defendants filed the pending
motion for summary judgment on counts Eight, Nine, and Ten.
(County Defs.’ Mot. [Docket Item 63].) The Court granted
Plaintiff an extension of time to file opposition to County
Defendants’ motion for summary judgment until November 17, 2016.
(Text Order [Docket Item 66], Oct. 18, 2016.) Due to a series of
delays resulting from illness and other complications, (see
Order [Docket Item 124], Dec. 15, 2017), Plaintiff’s opposition
was not filed until more than one year later, on December 30,
2017. (See Brief in Opposition (hereinafter “Pl.’s Opp’n”)
Around the same time, Lt. Sosinavage filed a separate federal
action, which is also set before the undersigned, Sosinavage v.
Thomson, et al., No. 14-3292 (D.N.J. filed on May 22, 2014).
3
23
[Docket Item 130].) County Defendants timely filed a reply
brief, (see Reply Brief (hereinafter “County Defs.’ Reply”)
[Docket Item 144]), along with updated Declarations by
Defendants Lynch and Thomson. (See Teris Cert. [Docket Item 1441].)
On April 20, 2018, the Court convened oral argument on the
pending motions. (See Minute Entry [Docket Item 164].) After
oral argument, the Court ordered supplementary briefing
regarding Plaintiff’s identification of Defendant Wysocki as a
potential comparator and regarding County Defendants’ claims
regarding the New Jersey Civil Service Commission. (See Letter
Order [Docket Item 165], Apr. 23, 2018.) County Defendants
submitted a letter regarding the New Jersey Civil Service
Commission on April 26, 2018, (see County Letter Brief [Docket
Item 169], Apr. 26, 2018), and one regarding Defendant Wysocki’s
status as a potential comparator on April 30, 2018. (See County
Letter Brief [Docket Item 170], Apr. 30, 2018.) Plaintiff
responded to these letters on May 7, 2018. (See Pl.’s Letter
Brief [Docket Item 171], May 7, 2018; Pl.’s Letter Brief [Docket
Item 172], May 7, 2018.)
On August 8, 2018, at plaintiff’s request, the Court stayed
this case for thirty (30) days, but explicitly stated that the
stay “will not apply to the Court’s adjudication” of the present
motions. (Order [Docket Item 194], Aug. 8, 2018, 1 n.1.) On
24
September 10, 2018, the Court extended the temporary stay until
October 1, 2018. (See Letter [Docket Item 199], Sept. 10, 2018.)
IV.
STANDARD OF REVIEW
At summary judgment, the moving party bears the initial
burden of demonstrating that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(a); accord Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once a properly supported
motion for summary judgment is made, the burden shifts to the
non-moving party, who must set forth specific facts showing that
there is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). In reviewing a motion for
summary judgment, the court is required to examine the evidence
in light most favorable to the non-moving party, and resolve all
reasonable inferences in that party's favor. Scott v. Harris,
550 U.S. 372, 378 (2007); Halsey v. Pfeiffer, 750 F.3d 273, 287
(3d Cir. 2014).
A factual dispute is material when it “might affect the
outcome of the suit under the governing law,” and genuine when
“the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The
non-moving party “need not match, item for item, each piece of
evidence proffered by the movant,” but must simply present more
than a “mere scintilla” of evidence on which a jury could
25
reasonably find for the non-moving party. Boyle v. Cty. of
Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (quoting Anderson,
477 U.S. at 252).
V.
DISCUSSION
Plaintiff’s claims against County Defendants can be
effectively divided into two categories: (1) claims of race
discrimination in violation of 42 U.S.C. § 1983 (Count Eleven)
and NJLAD (Count Twelve); and (2) and claims alleging that
County Defendants’ failure to promote Plaintiff constituted
retaliation in violation of the First Amendment of the U.S.
Constitution under 42 U.S.C. § 1983 (Count Thirteen) and Article
I, § 6 of the New Jersey Constitution (Count Fifteen). The Court
will address each category of claim in turn.
A.
Plaintiff’s Racial Discrimination Claims (Counts
Eleven and Twelve)
In Counts Eleven and Twelve of the Amended Complaint,
Plaintiff alleges that County Defendants’ failure to promote him
to Captain instead of Joseph Saponare, David Suarez, Deiter
Tunstall, Albert Handy, Gabriel Camacho, Alexsandro Ibarrondo,
Richard Verticelli, and Joseph Wysocki constituted racial
discrimination in violation of 42 U.S.C. § 1983 and NJLAD.
County Defendants move for summary judgment on this claim,
26
arguing that, while Plaintiff is a member of a protected class,4
he has failed to make a prima facie case of racial
discrimination with respect to any of the purported comparators.5
Alternatively, County Defendants argue that, even if Plaintiff
could establish a prima facie face for racial discrimination
with respect to one or more of the comparators, he cannot rebut
County Defendants’ proffered legitimate and nondiscriminatory
reason for not promoting him to Captain during the Pilot
Program. Plaintiff, in turn, argues that non-minority officers
were promoted above him, despite being less qualified and/or
ineligible for the position of Police Captain. (Pl.’s Opp’n
[Docket Item 130], 8.)
Plaintiff’s § 1983 and NJLAD claims are both analyzed
through the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Stewart v.
County Defendants concede Plaintiff is a member of a protected
class because he is African American. (County Br. [Docket Item
63-2], 13.)
4
County Defendants also argue that Defendant Wysocki should not
be
considered
a
comparator,
due
to
Plaintiff’s
belated
identification of him as such. (See Letter [Docket Item 170], Apr.
30, 2018, 1-2.) However, the Court has previously held that
“Plaintiff’s belated identification of [Defendant] Wysocki as a
potential comparator will be permitted due to Plaintiff[’s]
counsel’s excusable neglect for [the] reasons stated in the Court’s
previous opinion granting Plaintiff’s reconsideration motion.”
(Letter Order [Docket Item 165], Apr. 23, 2018, 1 (citing Order
[Docket Item 124], Dec. 15, 2017).) The Court shall not revisit
its prior decision to consider Defendant Wysocki as a potential
comparator at this time.
5
27
Rutgers, State Univ., 120 F.3d 426, 432 (3d Cir. 1997) (applying
McDonnell Douglas framework to § 1983 claims); Viscik v. Fowler
Equip. Co., 173 N.J. 1, 13-14 (2002) (adopting McDonnell Douglas
framework for NJLAD employment discrimination cases). The
McDonnell Douglas framework first requires the plaintiff to
establish a prima facie case of racial discrimination, at which
point the burden shifts to the defendant employer to provide a
legitimate nondiscriminatory rationale for their employment
decision. McDonnell Douglas Corp., 411 U.S. at 802-03. Once the
defendant has proffered their legitimate explanation, the
plaintiff may prevail if she can prove the defendant’s purported
reasoning was merely a pretext and that the adverse employment
action was actually motivated by discriminatory intent. Id. at
802.
1.
Whether Plaintiff Has Stated a Prima Facie Case
of Racial Discrimination
First, County Defendants argue that Plaintiff has failed to
produce sufficient evidence to support a prima facie case of
racial discrimination. (County Br. [Docket Item 63-2], 5-10.) To
establish a prima facie case of racial discrimination for
failure to promote, a plaintiff must prove establish that: (1)
he belongs to a protected category; (2) he applied for a job in
an available position for which he was qualified; (3) he was
rejected; and (4) after he was rejected, the position stayed
28
open and the employer continued to seek applications from
individuals with similar qualifications. McDonnell Douglas
Corp., 411 U.S. at 802; Bates v. Tandy Corp., 186 Fed. App’x
288, 293 (3d Cir. 2006) (citing Bray v. Marriott Hotels, 110
F.3d 986, 990 (3d Cir. 1997)).
As noted above, there were three distinct promotional
periods for County Police Captains during the relevant
timeframe: (1) promotions given to officers through the Pilot
Program between November 1, 2012 and October 31, 2013; (2)
Provisional Process promotions between May and July 2014, and
(3) promotions to Captain offered through Civil Service testing
in 2015. (Thomson Cert. [Docket Item 63-17], ¶ 4.) Plaintiff
claims he should have been made Captain instead of seven others
who were promoted during this timeframe: (1) Joseph Saponare;
(2) David Suarez; (3) Deiter Tunstall; (4) Albert Handy; (5)
Gabriel Camacho; (6) Alexsandro Ibarrondo; and (7) Richard
Verticelli. (Pl.’s Dep. [Docket Item 63-12], 56:21-57:6, 63:613, 86:11-18, 92:2-16.) The Court will thus address each of
these promotions—grouped by the applicable period in which the
officers received their promotions—to determine whether
Plaintiff has stated a prima facie case for failure to promote.
29
a.
Promotions offered through the 2013 Pilot
Program (Saponare, Suarez, Tunstall, Handy)
Plaintiff testified that his employment discrimination
claims are primarily derived from County Defendants’ failure to
promote him during the Pilot Program, which lasted between
November 1, 2012 and October 31, 2013. (Pl.’s Dep. [Docket Item
63-12], 47:21-48:18.) There was no formal application process
for promotions made through the Pilot Program; instead,
Defendants Lynch and Thomson made final recommendations for
promotions within the County Police Department during the
program, including promotions to County Police Captain. (Lynch
Cert. [Docket Item 63-11], ¶¶ 8, 15; Thomson Cert. [Docket Item
63-17], ¶¶ 6, 10.) These recommendations were then subject to
formal approval by the Camden County Board of Chosen
Freeholders.
During the Pilot Program, Defendants Lynch and Thomson
recommended that Officers Saponare, Suarez, Tunstall, Wysocki,
and Handy be promoted to Captain. (Lynch Cert. [Docket Item 6311], ¶¶ 20-38; Thomson Cert. [Docket Item 63-17], ¶ 14; Second
Lynch Cert. [Docket Item 170], 9 on the docket (¶¶ 5-7).)
Plaintiff alleges that these promotions resulted in certain
less-senior Caucasian officers “rank jumping” in violation of
the Pilot Plan and the elevation of less qualified officers at
30
Plaintiff’s expense. (Amended Complaint [Docket Item 26],
¶¶ 213-14, 225.)
County Defendants first argue that Plaintiff’s claim cannot
be predicated on the promotions of Saponare, Tunstall, and
Suarez because those three officers were promoted to Captain on
April 8, 2013, and Plaintiff did not commence employment with
the County Police Department until April 15, 2013. (County Br.
[Docket Item 63-2], 7; Lynch Cert. [Docket Item 63-11], ¶¶ 2122, 28-29, 35-36; Intergovernmental Transfer Agreement [Docket
Item 63-4], 2.) In support of this argument, County Defendants
cite Oliver, in which the court dismissed a failure-to-promote
claim for failure to establish a prima facie case of
discrimination, finding that “promotion [occurs] when an
employer hires an in-house employee for a higher position,” and
thus a plaintiff “must have been employed by the defendant
employer” in order to bring a claim of failure to promote.
Oliver v. Nat’l Beef Packing Co., 294 Fed. App’x 455, 458 (11th
Cir. 2008); see also Davis v. Coca-Cola Bottling Co. Consol.,
516 F.3d 955, 961 n.4 (11th Cir. 2008) (distinguishing, both
“factually and legally,” promotions from hirings, because the
former involves filling a position internally, and the latter
involves filling a position externally); Richardson v. CSS
Indus., No. 08-3900, 2009 WL 2230761, at *3 n.3 (E.D. Pa. July
27, 2009) (dismissing failure-to-promote claim brought under
31
ERISA because, at the time the defendant filled the position
which the plaintiff had sought, the plaintiff and defendant had
“no employment relationship”).
In the present case, the Court finds that Plaintiff’s prima
facie claim cannot rest on promotions that predate his initial
hiring. The fourth prong of a prima facie case for
discriminatory failure to promote requires the plaintiff to
prove that after he was rejected, the employer continued to seek
applications from individuals with similar qualifications. Here,
it cannot be said that the promotions of Saponare, Tunstall, and
Suarez could reasonably serve as evidence that the employer
continued to seek applications from similarly-qualified
individuals after Plaintiff was rejected for a promotion, when
those officers received their promotions before Plaintiff had
even started working for the County Police Department. Thus,
Plaintiff’s prima facie claim fails with respect to the hiring
and promotions of Saponare, Tunstall, and Suarez.
Officer Wysocki, however, received his promotion on April
30, 2013, fifteen (15) days after Plaintiff was hired. (Second
Lynch Cert. [Docket Item 170], 9 on the docket (¶ 5);
Intergovernmental Transfer Agreement [Docket Item 63-4], 2.)
County Defendants contend that they were seeking a Captain
specifically to oversee the Internal Affairs Division and that
Wysocki had more experience and expertise working in Internal
32
Affairs than Plaintiff.6 County Defendants also assert that
“[u]nder [Plaintiff’s] supervision, the Internal Affairs
Division was in a state of disarray,” and that “under his
supervision, there was a back log of over 400 internal affairs
investigations and he was not able to lead the division.”
(County Letter Brief [Docket Item 170], 4.) Therefore, County
Defendants assert that Plaintiff cannot fulfill the fourth prong
prima facie requirement that alternative candidates considered
by County Defendants were similarly qualified to Plaintiff. (Id.
at 4-5.)
Officer Handy received his promotion on October 28, 2013,
more than six months after Plaintiff was hired. (Thomson Cert.
[Docket Item 63-17], ¶ 16; Intergovernmental Transfer Agreement
[Docket Item 63-4], 2.) County Defendants contend that because
Handy had more police experience than Plaintiff, Plaintiff again
cannot fulfill the fourth prong prima facie requirement that
alternative candidates considered by County Defendants were
similarly qualified to Plaintiff. (County Br. [Docket Item 632], 14.)
Plaintiff alleges that he worked in Internal Affairs for less
than one year. (Amended Complaint [Docket Item 26], ¶ 21.) County
Defendants assert that Wysocki worked in Internal Affairs for
nearly four (4) years. (Second Lynch Cert. [Docket Item 170], 10
on the docket (¶ 10).)
6
33
The fourth prong of a prima facie failure-to-promote case
requires an inquiry into the “relative qualifications of the
plaintiff and the employee who actually received the promotion.”
Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 814 (6th Cir.
2011). For a plaintiff to be considered “similarly qualified” to
employees promoted in his stead such that a factfinder could
reasonably infer discriminatory failure to promote, he must be
“at least as qualified as the candidate chosen in [his] place.”
Scola v. Publix Supermarkets, Inc., 557 Fed. App’x 458, 468 (6th
Cir. 2014); see also Brown v. Mo. State Highway Patrol, 56 F.
App’x 282, 284 (8th Cir. 2003) (affirming district court grant
of summary judgment to defendants on discriminatory failure-topromote claim because plaintiff failed to provide evidence that
he was “equally qualified” for the position relative to the
individuals promoted in his place); cf. Pugh v. Taco Bell Corp.,
No. 97-01431, 1998 WL 35178379, at *13 (E.D. Mo. Oct. 2, 1998)
(denying summary judgment on discriminatory failure-to-promote
claim because an employee promoted in plaintiff’s stead had less
“supervisory” and “industry” experience and fewer “high ratings”
than the plaintiff).
Here, the City Police Department hired Officer Handy in
1991 and hired Plaintiff in 1995. (Handy Resume [Docket Item 6325], 2; Pl.’s Dep. [Docket Item 63-12], 12:20-22.) Defendant
Thomson, who made the final recommendation to promote Handy from
34
Lieutenant to County Police Captain, claims that he did so in
response to Handy’s “extensive executive experience,” noting
that he does not believe Plaintiff possessed the same level of
necessary experience or knowledge as Handy. (Thomson Cert.
[Docket Item 63-17], ¶¶ 14, 18-19.) Plaintiff has made no
showing that he was at least as qualified as Handy for the
promotion to Captain; indeed, Plaintiff acknowledges in answers
to the interrogatories that, with respect to seniority of
Lieutenants within the City Police Department, he came
“after . . . Handy.” (Pl.’s Answer to County Defs.’ First Set of
Interrogatories [Docket Item 63-18], ¶ 9.) Because Plaintiff has
failed to establish that he was similarly-qualified for the
Captain position relative to Handy, the Court finds that
Plaintiff cannot base his prima facie case for discriminatory
failure to promote on Officer Handy’s promotion to Captain.
Regarding Officer Wysocki’s promotion, County Defendants do
not appear to contest Plaintiff’s ability to satisfy the first
three prongs of Plaintiff’s prima facie claim with respect to
Wysocki’s hiring and promotion. (See generally County’s Letter
Brief [Docket Item 170].) However, there is significant factual
dispute regarding the fourth prong – whether Carmichael was as
well-qualified as Wysocki and regarding County Defendants’
proffered nondiscriminatory reasons for hiring Wysocki over
Plaintiff. (See id. at 2-4; Pl.’s Letter Brief [Docket Item
35
171], 2-5.)7 Several genuine disputes of material fact are
apparent on the present record regarding Wysocki’s promotion to
Captain over Carmichael. For example, County Defendants contend
that Wysocki was a permanent Lieutenant for over three (3)
years, while Plaintiff asserts that Wysocki was only a permanent
Lieutenant for approximately six months, (see Pl.’s Letter Brief
[Docket Item 171], May 7, 2018, 3), additionally County
Defendants claim that when Plaintiff was leading the IA
department, there was a backlog of over 400 IA cases, while
Plaintiff asserts that there were only 272 open IA cases at that
time. (See Pl.’s Letter Brief [Docket Item 171], May 7, 2018,
4.) Due to these disputes of material facts pertaining to both
Plaintiff’s and Wysocki’s qualifications, and therefore
pertaining to County Defendants’ proffered nondiscriminatory
reasons for hiring Wysocki over Plaintiff, granting summary
judgment with regard to Officer Wysocki would be inappropriate
at this time.
This dispute includes serious allegations that certain
declarations and documents in the record contain false statements,
implicating the integrity of County Defendants. (Pl.’s Letter
Brief [Docket Item 171], 3-5.) Due to the gravity of these
allegations, the Court will not address them in the context of the
present motion for summary judgment. Evidentiary refinements
pertaining to Wysocki’s selection may be sought by either party by
motion in limine before trial.
7
36
b.
2014 Provisional Promotions to Police
Captain (Camacho, Ibarrondo)
Next, Plaintiff names Officers Camacho and Ibarrondo as
examples of less-qualified officers who received promotions
instead of him. Officers Camacho and Ibarrondo received
provisional promotions through the 2014 selection process for
the Provisional Position of Police Captain. (Thomson Memorandum
[Docket Item 63-19]; Ibarrondo Personnel Action Form [Docket
Item 63-20]; Camacho Personnel Action Form [Docket Item 63-21].)
County Defendants argue that Plaintiff cannot base his prima
facie case on the promotions of Camacho and Ibarrondo because
Plaintiff never submitted an application for promotion during
the Provisional Process. (County Br. [Docket Item 63-2], 7-8.)
The first prong of a prima facie case for discriminatory
failure to promote requires that the plaintiff actually applied
for the position. Bates v. Tandy Corp., 186 Fed. App’x at 293.
In Bates, plaintiffs brought claims of racially-discriminatory
failure to promote them to district manager positions. Bates v.
Tandy Corp., No. 03-5519, 2005 WL 1798825 (E.D. Pa. Aug. 1,
2005), aff’d, 186 Fed. App’x 288 (3d Cir. 2006). The court found
that the plaintiffs had not applied for the district manager
position “despite invitations from [the employer] to do so.” Id.
at *6. Thus, despite the fact that the plaintiffs were
“undoubtedly qualified” to be district managers, the court
37
granted summary judgment to the defendant employer for failure
to fulfill the first prong of a prima facie case, holding that
“without making an application for [a] district manager
[position], [p]laintiffs have failed to state a prima facie case
for failure to promote.” Id.
Similarly, in the companion case of Sosinavage v. Thomson,
this Court found that Sosinavage’s conscious decision not to
apply for a position with the Camden County Police Department
prevented him from maintaining a claim that the Camden County
Defendants failed to select him for such a position. 2018 WL
2357743, at *6 (D.N.J May 23, 2018). Here, as in Bates and
Sosinavage, Plaintiff did not actually apply to be a Provisional
Police Captain. Plaintiff testified that he recalled being told
that in order to be considered for the Provisional Process, he
had to submit an application. (Pl.’s Dep. [Docket Item 63-12],
60:23-61:2.) Plaintiff stated in his deposition that he made a
conscious decision not to apply through the Provisional Process
because he “decided [to] just go take the [Civil Service] test
[for non-provisional promotions].” (Id. at 61:3-62:18.)
Accordingly, because he did not submit an application for a
Provisional Police Captain position, Plaintiff cannot base his
prima facie case on the promotions of Officers Camacho and
Ibarrondo during the 2014 Provisional Process, because Plaintiff
did not submit an application through the Provisional Process.
38
c.
2015 Civil Service Promotions (Verticelli,
Camacho, Ibarrondo)
Finally, Plaintiff identifies the promotions to Captain of
Officers Verticelli, Camacho, and Ibarrondo during the 2015
Civil Service exam process as evidence in support of his claim
of discriminatory failure to promote. (Pl.’s Dep. [Docket Item
63-12], 56:21-57:6, 92:2-9.) Verticelli received a promotion to
Captain as a result of his performance on the Civil Service
test. (Civil Service Promotion List [Docket Item 63-22]; Pl.’s
Dep. [Docket Item 63-12], 49:4-9, 56:21-58:23.) In addition,
Officers Camacho and Ibarrondo—who had previously received a
provisional promotion through the 2014 Provisional Process—
subsequently received a permanent promotion as a result of the
2015 Civil Service exam process. (Id.) County Defendants argue
that Plaintiff cannot base his prima facie case on these Civil
Service promotions because he ranked lower on the examination
than the three officers who received promotions. (County Br.
[Docket Item 63-2], 8-9.)
Plaintiff acknowledges in his deposition that he “tied for
third” in the Civil Service testing, but was ultimately ranked
fourth because the candidate with whom he tied, Ibarrondo, had
military experience. (Pl.’s Dep. [Docket Item 63-12], 49:4-9.)
And Verticelli and Camacho both received higher scores on the
Civil Service test than Plaintiff. (Civil Service Promotion List
39
[Docket Item 63-22]; Pl.’s Dep. [Docket Item 63-12], 49:4-9.)
Accordingly, as with the promotion of Officer Handy, Plaintiff
cannot base his prima facie case on the Civil Service promotions
of Verticelli, Camacho, or Ibarrondo because Plaintiff has
failed to show that he was similarly qualified relative to these
individuals in light of their superior ranking on the Civil
Service exam. See, e.g., Bates, 186 F. App’x at 292-93
(affirming summary judgment in favor of defendant employer
because defendant’s promotion selections were based on other
candidates’ superior performance on an objective evaluation
relative to plaintiff).8
Plaintiff also argues that some of the individuals promoted
during the 2015 Civil Service exam process were not eligible to
sit for the 2015 Civil Service exam. (Pl.’s Opp’n [Docket Item
130], 14-15; Pl.’s Letter Brief [Docket Item 172], 2.) County
Defendants respond that eligibility for the Civil Service exam is
determined solely by the New Jersey Civil Service Commission, as
a matter of New Jersey law. (County Letter Brief [Docket Item 169],
1-2 (citing N.J.S.A. 11A:4-1, et seq.; N.J.A.C. § 4A:4-2, et
seq.).) Plaintiff concedes that County Defendants’ understanding
of the cited New Jersey law is accurate. (Pl.’s Letter Brief
[Docket Item 172], 1.) Plaintiff responds that County Defendants
may have obtained certain waivers from the New Jersey Civil Service
Commission regarding the 2015 exam, however Plaintiff has yet to
provide any evidence of such. (See Pl.’s Letter Brief [Docket Item
172], 2 & n.1.) Therefore, there is no dispute of material fact as
to this issue.
8
Plaintiff also alleges that he was denied the opportunity to
participate in a training course in preparation for the 2015 Civil
Service exam. (Pl.’s Opp’n [Docket Item 130], 15; Pl.’s Letter
Brief [Docket Item 172], 2.) Counts Eleven and Twelve of
Plaintiff’s Amended Complaint primarily relate to the 2013 Pilot
Program and do not contain any allegations regarding 2015 Civil
Service Exam training. (Amended Complaint [Docket Item 26],
40
2.
Whether Plaintiff Produced Evidence That Could
Rebut the Department’s Proffered Reason for
“Rank-Jumping” Other Officers Above His Station
Even if Plaintiff could state a prima facie case for
failure to promote, he has not demonstrated that the legitimate
reasons offered by County Defendants for their employment action
were pretext. McDonnell Douglas Corp., 411 U.S. at 802-803. For
a plaintiff to establish pretext in a discriminatory failure-topromote case, the plaintiff must establish that the reason given
by the employer was a “fiction which obscures the reality” that
racial discrimination was a “but-for cause” of the employment
action. Lewis v. Univ. of Pittsburgh, 725 F.2d 910, 914-15 (3d
Cir. 1983) (citing McDonald v. Santa Fe Trail Transportation
Co., 427 U.S. 273, 282 n.10 (1976)).
Here, Plaintiff argues there is a dispute of material fact
as to whether the Pilot Program precluded “rank-jumping”
promotions from Sergeant directly to Captain, and claims that
such promotions violated the terms of the Pilot Program and
¶¶ 210-28.) Plaintiff alleges that he requested to take part in a
Civil Service exam training program in which at least one Caucasian
and one Hispanic officer were enrolled; Plaintiff alleges that his
request was denied, though he never received an explanation of the
denial, nor did he ask for an explanation of the denial, nor did
he file a grievance regarding the denial. (Pl.’s Dep. [Docket Item
63-12], 118:2-121:25.) The Court finds it difficult to give any
weight to this allegation, where Plaintiff’s testimony regarding
these events are extremely vague as to when such training was
requested and the reasons that Plaintiff did not seek further
clarification about the purportedly denied opportunity
41
placed less-qualified officers in positions above his station as
a lieutenant. (Cooper Cert. in Support of Pl.’s Mot. For
Reconsideration [Docket Item 75-1], at ¶ 27.) In support of his
claim that the Pilot Program expressly prohibits rank-jumping,
Plaintiff cites the Civil Service Order. (Id.; Hardwick Decl.
[Docket Item 75-8], ¶ 13; Civil Service Order [Docket Item
75-13], 15.) Plaintiff then argues that the Pilot Program
promotions of Officer Tunstall and Suarez from Sergeant directly
to Captain violated this rule. (Cooper Cert. in Support of Pl.’s
Mot. For Reconsideration [Docket Item 75-1], at ¶ 27 (citing
Lynch Cert. [Docket Item 63-11], ¶¶ 27, 34).)
County Defendants’ justification for promoting Tunstall and
Suarez, who were Sergeants, rather than Plaintiff, who was a
Lieutenant, was that the plain language of the Order requires
only that candidates meet the “minimum requirements for the
promotional title.” (Civil Service Order [Docket Item 75-13],
15.) The requirements as set forth in the County Police Captain
Job Specifications include three years of “supervisory police
experience” and a high school diploma. (County Police Captain
Job Specification [Docket Item 63-16], 2.) Defendants Lynch and
Thomson—who were responsible for making final recommendations
for hiring on positions in the County Police Department—did not
believe that the Pilot Program precluded “rank-jumping.” (Lynch
42
Cert. [Docket Item 63-11], ¶¶ 8, 10; Thomson Cert. [Docket Item
63-17], ¶¶ 6-9.)
County Defendants argue that Officers Tunstall and Suarez
met the minimum requirements for promotion to Captain. (Lynch
Cert. [Docket Item 63-11], ¶¶ 30, 37.) Officer Tunstall
graduated from Camden High School in 1982 and had more than
three years of experience as a Sergeant. (Tunstall Resume
[Docket Item 63-23].) Defendant Lynch further avers that Suarez
met all requirements for promotion to County Police Captain at
the time of his promotion. (Lynch Cert. [Docket Item 63-11], ¶
37.) Defendant Lynch states that he promoted Tunstall and Suarez
due to, inter alia, “[their] success as a supervisor of
uniformed officers” and their “demonstrated leadership
abilities.” (Id. at ¶¶ 31, 38.)
Plaintiff has not introduced any evidence to support the
notion that the officers promoted to County Police Captain did
not fulfill the minimum requirements for the promotion.
Plaintiff does not argue that the rank of Sergeant does not
constitute a supervisory position, nor does he proffer any
evidence that Officers Tunstall and Suarez lacked the requisite
experience. Plaintiff’s argument rests solely on the notion that
County Defendants’ decision to make promotions of Sergeant
directly to Captain violated the Civil Service Order, an
allegation that does not comport with the plain language of the
43
Civil Service Order itself. Additionally, Plaintiff has not
proffered any evidence to show that race was a motivating factor
or causally-linked to the decision to promote other officers
instead of him. Indeed, Plaintiff admits that both Officer
Tunstall (African American) and Officer Suarez (Hispanic) are
minorities. (Pl.’s Dep. [Docket Item 63-12], 51:19-22.)
Plaintiff has thus failed to produce evidence from which a
reasonable jury could infer that County Defendants’ rationale
for promotions during the Pilot Program was pretext for a
racially-discriminatory motive. Accordingly, the Court will
grant County Defendants’ motion for summary judgment on Counts
Eleven and Twelve of Plaintiff’s Amended Complaint, except as
they may pertain to Plaintiff’s claims regarding Officer Wysocki
as a comparator.
B.
Plaintiff’s Retaliation Claims (Counts Thirteen and
Fifteen)
Plaintiff also alleges that County Defendants’ failure to
promote him to Captain constituted unlawful retaliation against
him for actions he took against County Defendants while they
were employees of the City Police Department. (Amended Complaint
[Docket Item 26], ¶¶ 229-235, 240-253.) Specifically, Plaintiff
alleges that County Defendants retaliated against him for his
filing of a claim against Defendants Thomson, Lynch and Cuevas
in New Jersey Superior Court, a grievance he filed while working
44
with the City Police Department, and his speech at union
meetings pertaining to the Pilot Program and the formation of
the County Police Department. (Pl.’s Dep. [Docket Item 63-12],
106:6-21.) County Defendants move for summary judgment on these
claims as well, arguing that Plaintiff has failed to establish a
causal link between Plaintiff’s activities and Defendants’
decision not to promote him to Captain. (County Br. [Docket Item
63-2], 18.)
To sustain a claim for unlawful retaliation under § 1983 or
the New Jersey Constitution, Plaintiff must produce evidence to
show that (1) he engaged in constitutionally-protected conduct,
(2) the defendant undertook retaliatory action sufficient to
deter a person of ordinary firmness from exercising his
constitutional rights, and (3) there exists a causal link
between the constitutionally-protected conduct and the
retaliatory action. Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d
Cir. 2006).9 The Court will begin with the third prong of the
Analysis of retaliation claims under the New Jersey Constitution
is “functionally identical” to analysis of retaliation claims
under the First Amendment to the United States Constitution. See
Buck Foston’s New Brunswick, LLC v. Cahill, No. 11-03731, 2013 WL
5435289, at *28 n.23 (D.N.J. Sep. 27, 2013) (citing Hamilton
Amusement Ctr. v. Verniero, 156 N.J. 254, 264-65 (1998) (“Because
we ordinarily interpret our State Constitution’s free speech
clause to be no more restrictive than the federal free speech
clause, Shelton College v. State Bd. of Educ., 48 N.J. 501, 518 []
(1967), ‘[w]e rely on federal constitutional principles in
interpreting the free speech clause of the New Jersey
Constitution.’”) (quoting Karins v. City of Atlantic City, 152
9
45
argument to evaluate whether the Plaintiff has produced evidence
that might establish a causal link sufficient to establish a
retaliation claim.
1.
Whether Plaintiff has Produced Evidence that
Could Establish a Causal Link Between his
Activity and the Decision not to Promote Him
Plaintiff argues that, as a “direct and proximate result”
of his complaints, grievances, and speech regarding the improper
practices and customs of the Defendants while he was employed
with the City Police Department, he was passed over for a
promotion to County Police Captain. (Amended Complaint [Docket
Item 26], ¶¶ 232, 351.) County Defendants, in moving for summary
judgment on Plaintiff’s retaliation claims against them, argue
that Plaintiff has failed to establish the causal connection
between Plaintiff’s grievances and County Defendants decision
not to promote Plaintiff. (County Br. [Docket Item 63-2], 18.)
To establish causation between conduct and retaliation, a
plaintiff must show an “unusually suggestive” temporal proximity
between the protected conduct and the retaliation; absent
unusually-suggestive temporal proximity, then “timing plus other
evidence” may establish a “pattern of antagonism” sufficient to
permit a reasonable inference of causation. Farrell v. Planters
N.J. 532, 547; citing Bell v. Township of Stafford, 110 N.J. 384,
393 (1988))). Accordingly, this Court will address both the federal
and state retaliation claims together.
46
Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000); see also
Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003)
(citing Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir.
2003)). Such evidence is “not limited to evidence of timing or
demonstrative proof” of retaliatory motive, but instead includes
evidence “gleaned from the record as a whole” that may support
an inference of causation. Watson v. Rozum, 834 F.3d 417, 424
n.16 (3d Cir. 2016).
Defendants argue that there is no unusually-suggestive
temporal proximity between any of the Plaintiff’s lawsuits,
grievances, or union speeches and the County Defendants’
decision not to promote him to County Police Captain. (County
Br. [Docket Item 63-2], 20-21.) The Third Circuit provides for a
very limited window of time during which temporal proximity can
be considered sufficiently unusually-suggestive such that no
additional evidence is required. See, e.g., Dolan v. Penn
Millers Ins. Co., 625 F. App’x 91, 94 (3d Cir. 2015) (holding
that a proximity of three months between plaintiff’s internal
complaint about a coworker and the defendant employer’s decision
to terminate plaintiff was not unusually-suggestive); see also
Thomas, 351 F.3d at 114 (holding that three weeks between the
plaintiff’s complaint and defendant’s termination of plaintiff
was not unusually-suggestive); cf. Jalil v. Avdel Corp., 873
F.2d 701, 708 (3d Cir. 1989) (finding that a proximity of two
47
days between conduct and adverse action was unusually-suggestive
of retaliatory motive).
Here, the timing between either Plaintiff’s grievance in
2008-09, or the filing of his complaint in New Jersey Superior
Court in 2010, and County Defendants’ decision not to promote
him on April 15, 2013—the date he commenced employment with the
County—is not unusually suggestive, as there is at least a
three-year gap between those activities and the alleged
retaliation.10 As for Plaintiff’s speech during the COPS union
meetings, Plaintiff cannot recall when his speech occurred; the
latest time Plaintiff testified that this speech occurred was
“maybe” six months prior to the formation of the County Police
Department. (Pl.’s Dep. [Docket Item 63-12], 112:22-115:15.)
Making all inferences in favor of the Plaintiff, six months is
still too great of a temporal gap to be considered unusually
suggestive. Thus, in order for Plaintiff to fulfill the causal
requirement of his retaliation claim, the record as a whole must
include other evidence sufficient to permit a reasonable
inference of causation.
County Defendants advance three arguments against the
notion that the record as a whole may support an inference of
When a plaintiff’s protected activity involves a lawsuit against
a defendant, the Third Circuit measures temporal proximity from
the date on which the litigant first files the complaint. Blakney
v. City of Phila., 559 F. App’x 183, 186 (3d Cir. 2014).
10
48
causation: (1) There exists an intervening positive employment
action—Plaintiff’s hiring at the County Police Department—
between Plaintiff’s conduct and the alleged retaliation, (2)
other City employees who participated in similar activities as
the Plaintiff were hired and/or promoted by the County, and (3)
the Defendants have a legitimate non-retaliatory reason for
promoting other individuals to Captain over the Plaintiff.
(County Br. [Docket Item 63-2], 18-22.) The Court will address
each of Defendants’ arguments in turn.
a.
Intervening positive employment action
County Defendants argue that the fact that Plaintiff was
hired by the County Police Department after he engaged in the
speech upon which his retaliation claims are predicated weakens
the plausibility of the causal link between Plaintiff’s conduct
and Defendants’ decision not to promote him. (County Br. [Docket
Item 63-2], 18.) More recently, County Defendants notified the
Court that Plaintiff was promoted to Captain on March 18, 2018.
(County Letter Brief [Docket Item 162], 1.) County Defendants
cite to a number of persuasive opinions to support the notion
that an intervening positive employment action “discredits any
purported link” between the conduct and retaliation:
Albrechtsen v. Board of Regents of the
University of Wisconsin System, 309 F.3d 433,
437-38 (7th Cir. 2002) (overturning a jury
verdict in the plaintiff’s favor on a
retaliation claim because, inter alia, the
49
plaintiff had received a promotion after the
protected activity and before the adverse
action occurred); Drury v. BNSF Ry. Co., No.
15-3021, 2016 WL 4119068, at *6 (10th Cir.
Aug. 2, 2016); (“proof of intervening positive
employment actions cuts against an inference
of causation”); Dumas v. Union Pac. R.R. Co.,
294 F. App’x 822, 827 (5th Cir. 2008)
(affirming grant of summary judgment on
retaliation claim and noting “the intervening
positive employment action further weaken the
already tenuous causal link between [the
plaintiff’s] protected activity and his
termination”); Ball v. Tanoue, 133 F. Supp. 2d
84, 91 (D.D.C. 2001) (finding that temporal
gap between protected activity and adverse
action does not support causal inference of
retaliation where there was an intervening
positive
personnel
action);
Byrne
v.
Telesector Res. Grp., Inc., No. 04-CV-0076S,
2007 WL 962929, at *17 (W.D.N.Y. Mar. 29,
2007)
(“temporal
gap,
combined
with
intervening promotion and pay raise, precludes
the finding of a causal connection” in
retaliation claim), aff’d, 339 F. App’x 13 (2d
Cir. 2009).
(County Br. [Docket Item 63-2], 18-19; see also Carpenter v.
Fannie Mae, 174 F.3d 231, 236 (D.C. Cir. 1999) (noting that for
retaliation claims predicated on defendant’s negative
performance review of plaintiff, an intervening satisfactory
performance review weakens the plausibility of the causal
link).)
While not necessarily dispositive, the Court finds that the
presence of an intervening positive employment action does
substantially weaken the plausibility of the causal link. See,
e.g., Queer v. Westmoreland Cnty., 296 Fed. App’x 290, 293 (3d
50
Cir. 2008) (affirming summary judgment in favor of defendants on
a claim of retaliatory nonrenewal of a services contract, in
part because a finding that the defendant renewed the contract
following plaintiff’s exercise of his protected speech
“substantially undermine[d]” the causal link). Here, Defendants
Lynch and Thomson made final recommendations on all positions
for the County Police Department, and Plaintiff has introduced
no evidence that, at any point, Defendants Lynch and Thomson
tried to obstruct his hiring with the County. Indeed,
Plaintiff’s salary increased when he started at the County
Police Department. (Intergovernmental Transfer Agreement [Docket
Item 63-4].) The fact that the County Police Department hired
Plaintiff after he engaged in his protected activity against
County Defendants weighs against a finding that there was a
causal link between his speech and County Defendants’ decision
not to promote him. That Plaintiff is now a Captain makes it
nearly impossible to make such a finding.
b.
Other employees who spoke out against
defendants who were hired/promoted by Camden
County Police Department
Next, County Defendants argue that other employees who
filed lawsuits against Defendants while employed by the City or
spoke out against the formation of the County Police Department
were nevertheless hired or promoted by the County Police
Department. (County Br. [Docket Item 63-2], 19.) An employer’s
51
treatment of other employees can constitute circumstantial
evidence sufficient to give rise to an inference of causation
when considered as a whole. Marra v. Phila. Hous. Auth., 497
F.3d 286, 302 (3d Cir. 2007). Here, County Defendants note that
Kevin Wilkes, the president of Plaintiff’s former union, the
Camden Organization of Police Superiors (hereinafter
“C.O.P.S.”), who had also filed suit against County Defendants
while he was a City employee, was hired by the County Police
Department and subsequently promoted from Sergeant to
Lieutenant. (Pl.’s Dep. [Docket Item 63-12], 109:8-110:6.) Wayne
McFadden was also promoted to Lieutenant, despite being
outspoken against the formation of the County Police Department.
(Id. at 110:7-111:1.) And Albert Handy was promoted to Captain
through the Pilot Program despite being on the C.O.P.S. board.
(Thomson Cert. [Docket Item 63-17], ¶ 21.) Plaintiff has not
introduced any evidence that County Defendants refused to hire
or promote other employees who filed litigation or spoke out
against them. The circumstantial evidence of County Defendants’
treatment of other employees who were similarly-situated to
Plaintiff thus weighs against a finding of a causal link between
Plaintiff’s speech and County Defendants’ decision not to
promote him. See, e.g., Sauzek v. Exxon Coal USA, 202 F.3d 913,
919 (7th Cir. 2000) (affirming grant of summary judgment for
defendant on plaintiff mineworker’s claim that defendant
52
employer retaliated against him for filing EEOC discrimination
charges against them, because out of twenty-four employees who
were terminated and filed charges after the mine closed,
thirteen were rehired).
c.
Defendants’ proffered legitimate reasons for
not promoting Plaintiff
Finally, County Defendants argue that, as with Plaintiff’s
claims of racial discrimination, Plaintiff cannot rebut County
Defendants’ proffered legitimate reasons for promoting other
officers prior to Plaintiff. (County Br. [Docket Item 63-2], 2122.) As with discrimination claims, the employer’s motive is
relevant to a claim of retaliation, and the employer can defend
its actions by providing a legitimate nondiscriminatory
rationale. Lepore v. Lanvision Systems, Inc., 113 Fed. App’x
449, 453 (3d Cir. 2004). Just as with the racial discrimination
claims, discussed supra, Plaintiff has not produced evidence
sufficient to show that County Defendants’ legitimate rationale
for hiring other officers—based on factors such as the
supervisory and leadership skills of the officers who were
promoted—was a mere pretext for an underlying retaliatory
motive. Plaintiff has thus failed to establish a causal link
between his activity and County Defendants’ decision not to
promote him. Accordingly, the Court will grant summary judgment
in favor of County Defendants on Plaintiff’s retaliation claims.
53
VI.
CONCLUSION
For the foregoing reasons, the Court will grant County
Defendants’ motion for summary judgment in part and deny it in
part. Summary judgment shall be granted with respect to Counts
Eleven and Twelve of Plaintiff’s Amended Complaint, except as
they may pertain to Plaintiff’s claims regarding Officer Wysocki
as a comparator, and granted in full with respect to Counts
Thirteen and Fifteen.
The accompanying Order will be entered.
September 27, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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