CARMICHAEL v. THOMSON et al

Filing 236

MEMORANDUM OPINION UPON RECONSIDERATION. Signed by Judge Jerome B. Simandle on 4/5/2019. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ANTHONY CARMICHAEL,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil No. 14-3323
(JBS-AMD)

v.
JOHN SCOTT THOMSON, et al.,

MEMORANDUM OPINION
UPON RECONSIDERATION

Defendants.

SIMANDLE, District Judge:
1.

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 § 1983.1 On September
27, 2018, this Court filed an Opinion addressing Plaintiff’s claims
against County Defendants for allegedly discriminating and/or
retaliating against Plaintiff by failing to promote him to Captain

1

The Amended Complaint contains two distinct components:
(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; such claims
arose against the City of Camden arose before the
County’s takeover of the Police Department and were not
at issue in the underlying summary judgment motion; 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 Carmichael v. Thomson,
No. 14-3323, 2015 WL 1010485 (D.N.J. Mar. 6, 2015).
2

during or soon after the formation of the Camden County Police
Department in May 2013. See Carmichael v. Thomson, No. 14-3323,
2018 WL 4629516 (D.N.J. Sept. 27, 2018). In that Opinion, the Court
granted summary judgment in favor of County Defendants as to Counts
Eleven and Twelve of the Amended Complaint, “except as they may
pertain to Plaintiff’s claims regarding Officer Wysocki as a
comparator,” and granted summary judgment in favor of County
Defendants in full as to Counts Thirteen and Fifteen. Id. at *19.
2.

This matter comes before the Court on County Defendants’

motion for reconsideration as to the portion of the September 27th
Opinion

and

Order

denying

summary

judgment

with

respect

to

Plaintiff’s claims regarding Officer Wysocki as a comparator. (See
County Defs.’ Mot. [Docket Item 221].) Plaintiff opposes the
present motion. (See Pl.’s Opp’n [Docket Item 224].)2

2

The Court granted Plaintiff an extension of time to file a
brief in opposition to the present motion until February 5, 2019.
(See Order [Docket Item 223].) Plaintiff’s opposition brief was
nevertheless filed one day late, on February 6, 2018, (see Pl.’s
Opp’n [Docket Item 224]), along with a letter from Plaintiff’s
counsel seeking the Court’s indulgence in considering the late
submission. (See Letter [Docket Item 226].) Though Plaintiff’s
opposition brief was filed late, even after the Court had granted
an extension, the Court shall consider the submission.
Plaintiff’s brief in opposition also purports to serve as a
cross motion for sanctions against County Defendants. (See Pl.’s
Opp’n [Docket Item 224], 8-10.) This purported cross motion does
not comply with Local Civil Rule 7.1, because it does not include
a notice of motion, a certificate of service, or a proposed order,
and it does not note the corresponding motion day on the cover
page. See L.CIV.R. 7.1. Nevertheless, Plaintiff’s sanctions motion
has been reviewed and will be denied as frivolous, as Plaintiff
3

3.

Background. The factual and procedural background of

this case as it pertains to County Defendants was thoroughly
detailed in the Court’s prior Opinion regarding summary judgment,
see Carmichael, 2018 WL 4629516, and shall not be repeated herein,
except as necessary for the determination of the present motion.
After oral argument on County Defendants’ prior motion for summary
judgment, during which Plaintiff’s counsel asserted her theory
that Officer Wysocki was treated more favorably than Carmichael
due to racial considerations. In general, Plaintiff asserted at
oral argument that Wysocki had been promoted to Captain in the
Camden County Police Department before Carmichael was promoted to
Captain, despite being less qualified (or unqualified) for the
Captain’s rank. The Court ordered supplementary briefing regarding
Plaintiff’s identification of Defendant Wysocki as a potential
comparator. (See Letter Order [Docket Item 165], Apr. 23, 2018.)
County Defendants submitted a letter 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

created the procedural confusion that the County Defendants seek
to remedy by the present motion, as discussed infra.
Additionally, County Defendants filed a brief in reply to
Plaintiff’s opposition. (See County Defs.’ Reply [Docket Item
227].) Local Civil Rule 7.1 does not permit parties moving for
reconsideration to file reply briefs “unless permitted by the
Court.” L.CIV.R. 7.1(d)(3). County Defendants never sought the
Court’s leave to file a reply brief; nevertheless, the Court shall
consider the filing because it addresses new matter in Plaintiff’s
opposition.
4

to County Defendants’ letter on May 7, 2018. (See Pl.’s Letter
Brief [Docket Item 171], May 7, 2018.) In the present motion for
reconsideration, County Defendants correctly state that they never
requested leave from the Court to file a response to Plaintiff’s
May 7, 2018 letter, nor did the Court grant such leave sua sponte.
(See County Defs.’ Br. [Docket Item 221-5], 1 n.1.) The Court then
carved out the alleged situation of Wysocki as the sole remaining
comparator, largely because the matter had not been adequately
addressed in the parties’ papers.
4.

Standard of Review. A motion for reconsideration is “an

extraordinary remedy to be granted very sparingly.” In re Lord
Abbett Mut. Funds Fee Litig., 417 F.Supp.2d 624, 627 (D.N.J.2005)
(internal quotation marks omitted). There are three grounds for
relief upon which a motion for reconsideration may be granted,
under L.CIV.R. 7.1(i): “(1) an intervening change in controlling
law has occurred; (2) evidence not previously available has become
available; or (3) it is necessary to correct a clear error of law
or prevent manifest injustice.” Connolly v. Mitsui O.S.K. Lines
(Am.) Inc., No. 04–5127, 2010 WL 715775, at *1 (D.N.J. Mar. 1,
2010).

Reconsideration

is

not

appropriate

to

“relitigate

old

matters” or to voice disagreement with the court’s decision. See
Flores v. Predco Servs. Corp., No. 10–1320, 2011 WL 3273573, at *2
(D.N.J.

July

29,

2011).

However,

“reconsideration

is

the

appropriate means of bringing to the court’s attention manifest
5

errors of fact or law.” Max’s Seafood Cafe ex rel. Lou-Ann, Inc.
v. Quinteros, 176 F.3d 669, 678 (3d Cir. 1999) (citing Harsco Corp.
v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)).
5.

Discussion.

County Defendants bring this motion for

reconsideration “to correct clear errors of fact and to prevent
manifest injustice,” with respect to the Court’s decision to deny
summary

judgment

as

it

pertained

to

Plaintiff’s

claims

of

discrimination respecting Officer Wysocki as a comparator. (County
Defs.’ Br. [Docket Item 221-5], 1.) County Defendants specifically
argue that
reconsideration should be granted and the
remaining claim dismissed because (1) the
County did not have a fair and full
opportunity to respond to and rebut the
arguments raised by Plaintiff in the May 7,
2018 supplemental letter submitted after oral
argument such that fairness and justice
warrants
reconsideration;
(2)
permitting
Plaintiff to assert Wysocki was a relevant
comparator,
contrary
to
his
deposition
testimony and discovery responses at the
preverbal 11th hour was patently unfair to the
County since there had been no discovery
provided by Plaintiff as to his allegations
related to Wysocki and no opportunity for the
County to provide discovery related thereto;
(3) the issues of fact noted by the Court as
they pertained to Wysocki do not create a
genuine issue of material fact precluding
summary judgment; and (4) even if the motion
for reconsideration is denied, all individual
defendants, other than Lynch, should be
dismissed since it is undisputed that Lynch
was the sole decision maker with respect to
Wysocki’s promotion to Captain and there are
no facts in the record to support any claim
against the other individual defendants.
6

(County Defs.’ Br. [Docket Item 221-5], 1-2.) Plaintiff argues
that County Defendants’ motion should be denied because it is
supported

by

“new”

and

“false”

evidence

provided

by

County

Defendants. (See Pl.’s Opp’n [Docket Item 224], 3-8.)
6.

As noted, supra, “[t]he Court will grant a motion for

reconsideration only where its prior decision has overlooked a
factual or legal issue that may alter the disposition of the
matter,” Andreyko, 993 F. Supp. at 478 (internal citations and
quotation marks omitted), or to correct “manifest errors of fact
or law.” Max’s Seafood Cafe, 176 F.3d at 678 (citing Harsco, 779
F.2d at 909). In this instance, County Defendants wish to challenge
assertions made by Plaintiff in his submissions relating to County
Defendants’ prior motion for summary judgment. (See generally
County Defs.’ Br. [Docket Item 221-5].) As described, supra, County
Defendants did not have an earlier opportunity to respond to
Plaintiff’s supplemental submission regarding Officer Wysocki.
Such new arguments are not appropriately brought in a motion for
reconsideration. However, the Court shall grant County Defendants’
present motion to the extent that the Court shall grant County
Defendants leave to file a new summary judgment motion pertaining
to Plaintiff’s claims with respect to Officer Wysocki, within
twenty-one (21) days of the entry of the accompanying Order on the
docket. County Defendants also seek reconsideration to the extent

7

that they argue that all individual defendants should be dismissed
from this case, except for Defendant Lynch, because Defendant Lynch
was the sole decision maker relevant to Wysocki’s promotion. (See
County Defs.’ Br. [Docket Item 221-5], 18-20.) This issue was also
not fully briefed as part of the underlying summary judgment
motion, therefore the Court shall also grant County Defendants
leave to file a new summary judgment motion pertaining to this
issue within twenty-one (21) days of the entry of the accompanying
Order on the docket. The remainder of County Defendants’ present
motion shall be denied.
7.

Conclusion. For the foregoing reasons, the Court will

grant County Defendants’ motion for reconsideration in part and
deny it in part. The Court shall grant County Defendants leave to
file a new motion for summary judgment, with respect to Counts
Eleven and Twelve of Plaintiff’s Amended Complaint as they pertain
to Plaintiff’s claims regarding Officer Wysocki as a comparator
and with respect to their argument that all individual defendants
should be dismissed from this case, except for Defendant Lynch,
because Defendant Lynch was the sole decision maker relevant to
Wysocki’s promotion, within twenty-one (21) days of the entry of
the accompanying Order on the docket. Plaintiff’s request for
sanctions shall be denied as frivolous. If any side is to blame
for this confusion, it is Plaintiff, who apparently never provided
a

contention

that

Wysocki’s

promotion
8

was

discriminatory

or

retaliatory nor supplied in discovery the documents on which
Plaintiff
opposition

relied,
to

the

for

the

first

underlying

time,

summary

in

oral

judgment

argument
motion.

accompanying Order will be entered.

April 5, 2019
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

9

in
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