EILEEN A. EMBREY v. STATE OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6499-06T36499-06T3

EILEEN A. EMBREY, GRACE

ESPOSITO, ANGELO S. FABREGAS,

EDDIE L. HALL, JR., CHERYL A.

MOSES, LEWIS POWELL, and

RICHARD M. WILLIAMS

Plaintiffs,

and

SHAHIDAH B. SHARIF and

CHARLES B. WILLIAMS,

Plaintiffs-Appellants,

vs.

STATE OF NEW JERSEY, COUNTY OF

ESSEX PROSECUTOR'S OFFICE,

DONALD CAMPOLO, Individually,

Jointly, Severally, and in

the Alternative,

Defendants-Respondents.

__________________________________

 

Argued: May 20, 2009 - Decided:

Before Judges Cuff, C.L. Miniman and Baxter.

On appeal from the Superior Court of New Jersey, Law Division Essex County, Docket No. L-7437-02.

Linda Wong argued the cause for appellants (Wong Fleming, P.C., attorneys; Ms. Wong and Daniel C. Fleming, of counsel; Ian S. Clement, on the brief).

Matthew Sapienza, Deputy Attorney General, argued the cause for respondent State of New Jersey (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Sapienza, on the brief).

Christopher J. Capone argued the cause for respondent County of Essex Prosecutor's Office and Donald Campolo (Lum, Drasco & Positan, LLC, attorneys; Paul J. McAdam, of counsel; Mr. Capone, on the brief).

PER CURIAM

In this employment discrimination case, two employees of the Essex County Prosecutor's Office (ECPO) argue that they were denied promotions due to racial discrimination. One plaintiff also argues that officials discriminated against her due to her religion. The complaints arose and plaintiffs commenced legal action following the resignation of the prosecutor and during the period of time the State Attorney General assumed control of the office. We review an order granting summary judgment to defendants State of New Jersey, ECPO, and Donald Campolo and dismissing plaintiffs' complaint, and the order denying plaintiffs' motion for reconsideration. We affirm.

I

We derive the facts from the Statements of Material Facts submitted by the parties in support of and in opposition to defendants' motion for summary judgment. R. 4:46-2. The undisputed material facts are as follows:

The Attorney General appointed Donald Campolo to serve as a fiscal and personnel monitor at the ECPO. During his assignment, Campolo answered to the Attorney General and the Assistant Attorney General in the Division of Criminal Justice in charge of the prosecutor's supervisory section. Campolo was expected "to be the ultimate decision-maker on any discretionary expenditures of funds . . . [and] any deployments of personnel, hiring of personnel." The Essex County Prosecutor resigned in September 1999 following Campolo's appointment. The Attorney General designated Campolo as Acting Essex County Prosecutor in September 1999; he remained in that position until October 2003.

After his appointment as Acting Prosecutor, Campolo requested the assignment of Lewis Becker from the Division of Criminal Justice to the ECPO to serve as Acting Chief of Investigators. Becker was to replace Thad Givens, a black male who had retired. As Chief, Becker oversaw the entire ECPO investigatory staff: three deputy chiefs, captains, lieutenants, and investigators. Becker's appointment was not advertised; applications were neither invited nor received. His appointment was approved by the Division of Criminal Justice.

During his deposition, Campolo testified that he selected Becker to serve as Chief because he was "among the most intelligent law enforcement officers [he had] ever met." Becker had extensive experience in law enforcement, including periods of employment in Essex County, and Campolo trusted him and "felt he could bring a lot to the table." Becker was appointed in January 2000. Once appointed, Campolo and Becker discussed and evaluated the ECPO investigatory staff and proposed a reorganization of the investigatory functions to enhance the prosecutions undertaken by the office.

A. Charles B. Williams

Charles B. Williams, an investigator in the ECPO since 1982, alleges that he was the victim of racial discrimination in the selection of two white males to fill two vacant deputy chief positions. One of the changes discussed by Campolo and Becker was the creation of a third deputy chief responsible for professional standards. In the past, this function had been performed by a captain.

The deputy chief positions were high level positions. The deputy chiefs were direct confidants of the Prosecutor and Acting Chief of Investigators. Campolo considered it appropriate to not post the deputy chief position but to choose someone in whom he had personal confidence and trust.

On or about May 2, 2001, two new deputy chiefs were named: Frank Rogers and Stephen Praschak. Campolo acknowledged that he considered no one other than Rogers and Praschak.

Rogers had been a Captain in the Newark Police Department assigned to ECPO as a full-time liaison. He had an extensive career in all aspects of law enforcement during his career with the Newark Police Department. Rogers was personally solicited by Campolo and Becker. Becker had worked with Rogers on a daily basis regarding a range of operational matters as they related to the Newark Police Department and ECPO. Becker found him to be "very effective and very good at what he did," "performance was exemplary, outstanding," "hard working," "had a wide wealth and range of experience and could produce tangible results on a timely basis."

Campolo explained that Rogers was the only viable candidate. Campolo stated he was looking for

someone of rank, stature, someone of responsibility who could basically bridge the functions of the largest police department that we serve. And see if [Rogers] could make things work better because that was one of the chronic problems in the [ECPO] was communicating effectively with Newark, making sure we knew their problems, they knew ours, making things work better.

As a Newark Police Department Captain, Campolo believed Rogers "had substantial experience in internal affairs in Newark." Campolo also stated:

And over the months that he was assigned to the Prosecutor's Office I kept getting reports and Lou kept getting reports that he was just a very intelligent, well organize[d] worker who was very effective in that job and was quite willing to go above and beyond what his duties were strictly limited to. And we had an acute need for someone to fill this contemplated role for professional standards.

Praschak was a lieutenant of county investigators, and also was solicited by Campolo and Becker. Praschak was selected because of his work performance and the needs of ECPO at that time. In particular, Becker indicated that there was a "pressing need for a deputy chief legal supervisor in the special criminal squads, especially the Homicide Unit, and the newly formed Vehicular Homicide Unit in particular, and all of the criminal squads." Campolo acknowledged he relied upon Becker's assessment of Praschak's communication skills, initiative, knowledge and credibility. Various assistant prosecutors with supervisory responsibilities had also recommended Praschak. Prior to his appointment to Deputy Chief, Praschak had a long and distinguished career at ECPO and received numerous commendations.

Charles Williams was a lieutenant of county investigators in the consolidated unit. He did not apply for the deputy chief position, never expressed interest to Campolo in a deputy chief position, and did not know the required qualifications for the position of deputy chief. Material submitted by plaintiffs in opposition to defendants' motion for summary judgment reveals that Williams, a black male, commenced work at ECPO as an investigator in 1982 and was promoted to lieutenant in 1991. He served as captain of the narcotics task force from 1996 to 1998. He was demoted to lieutenant on April 1, 1998, but stated he was never disciplined.

Williams also testified that he discussed his 1998 demotion with Campolo in 1999 or 2000. According to Williams, Campolo stated he would not be promoted again because that would enhance his lawsuit. However, his complaint was not filed until July 2002.

Charles Williams alleges that similarly situated white colleagues have been afforded opportunities to attend schools for career advancement opportunity and/or management training. At his deposition, however, Williams did not identify particular training opportunities he sought but was denied.

Richard Muncey, retired chief of the Paterson Police Department, was hired as a training officer. Muncey was instructed to institute a training system. He developed an inventory of training available at any given time, and determined, based upon investigators' present assignments, what available training would be relevant for them. Lieutenants would advise Muncey of ECPO employees interested in courses, and Muncey would coordinate training with them. Campolo was not directly involved in training at ECPO.

B. Shahidah Sharif

Shahidah Sharif began her career at ECPO in December 1971, as a clerk typist. She was subsequently promoted to senior clerk typist and then principal clerk typist. She was later promoted to the position of chief clerk.

In April 1997, Sharif, then a chief clerk, was promoted to the position of office supervisor, and received an increase in compensation. At that time, ECPO had an office supervisor named Mary O'Brien. According to Sharif, in August 1997, O'Brien contacted the New Jersey Department of Personnel (DOP) challenging the appointment. O'Brien insisted that Sharif should properly bear the title of chief clerk. Thereafter, DOP contacted ECPO seeking further information in order to conduct a classification review to determine whether or not Sharif's position was properly classified under civil service law. On October 31, 1997, following a review of Sharif's job responsibilities, DOP formally determined that Sharif should be classified as chief clerk rather than office supervisor.

Sharif appealed the DOP determination. Campolo and former ECPO Prosecutor Patricia Hurt supported Sharif's appeal. On or about May 7, 1999, a DOP hearing officer recommended Sharif's appeal be upheld and that she "be classified in the title of Office Supervisor pending promotional procedures." On May 14, 1999, then Deputy Chief Assistant Prosecutor Siobhan A. Teare wrote three memos to Prosecutor Hurt, the ECPO Director of Office of Human Resources and Director of Administration, advising that Sharif should be placed in the title of office supervisor and be paid any back pay or other monies owed to her. On June 3, 1999, Teare forwarded to Sharif a memorandum from the ECPO Director of Human Resources. The memorandum acknowledged the DOP recommendation that Sharif "be classified in the title of Office Supervisor pending promotional procedures," and advised that due to the absence of any existing eligibility list, the office supervisor position is subject to promotional procedures at which time "Ms. Sharif will need to refile for this promotional opportunity and take whatever steps are necessary (filing of her application, and/or formal examination) to attain permanent status."

Later in 1999, while the DOP's report and recommendation were still pending final action by the DOP, the ECPO clerical employees chose to unionize as the ECPO Clerical Association (the Association). The Association and ECPO agreed in writing that both O'Brien and Sharif were supervisors who should be excluded from the Association. Nevertheless, ECPO acted to ensure that Sharif's benefits were not in jeopardy. Campolo was Acting Prosecutor at this time.

On April 12, 2000, the DOP issued a Final Administrative Action in which the DOP Commissioner "accepted and adopted the Classification Reviewer's Report and Recommendation." In March 2001, DOP announced a vacancy for the permanent office supervisor position. Sharif was on leave from employment at that time, and requested an extension of time from DOP to submit the required application. The DOP promotional announcement provided that the maximum allowable salary for the office supervisor position was $69,330. On August 20, 2001, DOP released its promotional list; Sharif was identified as one of five individuals who had all received the rank of "1." Consequently, Sharif received the title of office supervisor on a permanent basis. Sharif received the base salary of $69,330, the same base pay since her provisional appointment in 1999.

Mary O'Brien retired and a second woman, Martha Thompson, became office supervisor. Thompson is Hispanic.

Along with her discrimination claim, Sharif alleges that O'Brien altered and illegally removed official office documents pertaining to her employment and pension. At deposition, Sharif testified that O'Brien lost Sharif's paperwork in 1989 or 1990.

Material attached to a certification, which, in turn, was attached to plaintiffs' Rule 4:46-2 statement, reveals that Sharif's allegations of discrimination date back to the 1980s: In 1987, Sharif ranked number one on the promotional list for the chief clerk position, but she was initially told that Patty Casale, who ranked third, would receive the appointment. The Prosecutor instructed that Sharif was to be appointed to the position permanently; however, her paperwork was lost by O'Brien. Ultimately, the mistake was corrected and Sharif was made a permanent chief clerk retroactive to the date Casale had been appointed. Nonetheless, she claimed discrimination because she was started at a salary of $25,280, while Casale received $28,810.

Prior to her appointment as office supervisor, Sharif requested a transfer to the juvenile section due to difficulties she had with a captain, who she believed was untruthful, in the adult section. Her transfer had no effect on her compensation. Despite her request to be transferred to juvenile, Sharif later alleged in her deposition that only people who had "been reprimanded two or three times" or "written up" were transferred to that section.

Following her promotion to office supervisor, she continued to work in the juvenile division, but she was on leave due to her daughter's medical condition from April 1997 until July 1998. It was at this time that O'Brien sought an audit of Sharif's title.

During the pendency of the review and Sharif's appeal, a dispute arose about back pay. O'Brien had advised her she would not receive the money while the administrative appeal was pending. Nevertheless, on December 10, 1999, Sharif received a retroactive payment of $24,374; she alleges she never received a full accounting of what was included in the payment.

Despite the ECPO's support of her appeal, Sharif claimed that, once she obtained the position, she was given "no authority to hire or fire her subordinates, [and was] thus den[ied] . . . the ultimate authority over the people she supervised, leaving her only with the option of verbal reprimands and transfer[s]." She further claimed that transferred employees were never replaced. Sharif contended that ECPO retaliated against her for having to award her the permanent position by preventing her from "fully exercis[ing] the authority she should have been given," and which was given to O'Brien, her counterpart in the adult section. She further claimed that she was prohibited from certain responsibilities including approving overtime, handling meetings, and meeting with contractors. She alleged that she also was required to seek permission from subordinates to access staff files, and that she was not allowed to liaise with the County as part of her duties. Finally, Sharif claimed that she was assigned a "disproportionate number" of "troubled employees" in the juvenile section, and that she was not assigned any Caucasian employees.

Sharif alleged that Thompson, O'Brien's replacement, continued O'Brien's practice of excluding her, and claimed that she was not allowed to: (1) participate in planning meetings for promotions and job assignments; (2) attend monthly unit meetings; (3) learn of policy changes; or (4) access personnel records. She further alleged that, after she filed her lawsuit, ECPO assigned one Caucasian employee to her section, but that employee "received a superior benefit package than minority employees."

Finally, Sharif alleged that a lieutenant in the ECPO "incite[d] colleagues and subordinates to frame a prejudice against all Muslims" by sending a derogatory email to his co-workers "regarding the newly issued stamp honoring Muslims." The matter was handled privately, and Sharif claimed that the lieutenant's subsequent promotion "thus encourag[ed] individuals to express hatred and bias against minority individuals as this type of behavior . . . is grounds for promotion."

II

In August 2001, plaintiffs filed charges of discrimination with the Equal Employment Opportunity Commission (EEOC). Sharif and Williams alleged race discrimination; Sharif also alleged religious discrimination. EEOC found that it was "unable to conclude that the information obtained establishes violations of the statutes."

On July 31, 2002, Williams, Sharif and seven additional plaintiffs filed a complaint against ECPO, Campolo, and the State of New Jersey in which they alleged discrimination and conspiracy to discriminate based on defendants' alleged failure to promote, post open positions, or provide equal access to training opportunities under 42 U.S.C.A. 1983, 1985, and 1986. They also alleged that these employment practices violated 42 U.S.C.A. 2000e-2(a)(1) (Title VII). In their amended complaint, plaintiffs asserted a claim under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -13. ECPO moved to dismiss the claims against it and to compel the State to provide a defense for Campolo on the ground that he was at all times a State employee. The State also moved to dismiss the complaint. We granted leave to appeal an order requiring the State to defend and indemnify Campolo and any other ECPO personnel and the order denying the State's motion to dismiss. We affirmed the order denying the State's motion to dismiss but reversed the order requiring defense and indemnification for the period during which Campolo served as Acting Prosecutor. We held, however, that the State could be responsible for Campolo's actions during the time he served as the Attorney General's monitor for all fiscal and personnel action in the ECPO.

Following discovery, the State and ECPO moved for summary judgment. In an oral opinion, Judge Rachel Davidson found that the federal claims against the State were barred by sovereign immunity. In the alternative, the judge dismissed the Title VII claims against the State because plaintiffs failed to name the State in their EEOC charges, thereby failing to exhaust their administrative remedies. The judge held the CEPA claims were time barred. The judge also denied plaintiffs' motion for reconsideration.

On appeal, Williams argues that his deposition testimony presented genuine issues of material fact regarding defendants' word-of-mouth promotion policies. He also contends that Campolo's word-of-mouth promotion of Rogers and Praschak presented prima facie evidence that the ECPO supported such employment practices and that such practices also included selective training opportunities for Caucasian employees.

Sharif argues that summary judgment was inappropriate because she established an adverse employment action through her evidence of significant diminution of her job responsibilities. Both Williams and Sharif also argue that their CEPA claims were continuing violations; therefore, their complaint was not time barred. They also contend that defendants are not immune from liability under 42 U.S.C.A. 1983, the State was on notice of the EEOC filing, and the judge should have allowed plaintiffs to

amend their complaint to assert a claim under the Law Against Discrimination (LAD), N.J.S.A. 10:5-4 to -49.

III

In reviewing a trial court's grant of summary judgment, this court applies the same standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The trial court's legal conclusions are subject to de novo review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

A court shall grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). An issue of fact is considered genuine "only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Ibid.

In other words, the trial court must determine whether the evidence presented, "when viewed in the light most favorable to the non-moving party," is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Where "there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue [is] insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Ibid. Credibility determinations, however, must be reserved for trial. Ibid.

A. Title VII Claims.

Williams and Sharif assert the employment practices of Campolo and ECPO discriminated against them due to their race or race and religious beliefs. Each argues that they presented sufficient evidence to raise genuine issues of material fact to allow their Title VII claims to proceed.

A Title VII claim of discrimination based on disparate treatment is analyzed under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973). First, the plaintiff must establish a prima facie case of discrimination. Id. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677. In order to establish a prima facie case of failure to promote under Title VII, the plaintiff must show: (1) he or she is a member of a protected class; (2) he or she applied and was qualified for the promotion; (3) he or she was rejected in spite of those qualifications; and (4) a similarly situated individual was promoted instead. Barber v. CSX Distrib. Servs., 68 F.3d 694, 698 (3d Cir. 1995). See also McDonnell Douglas, supra, 411 U.S. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677 (establishing the general requirements for a prima facie case).

If the plaintiff successfully establishes a prima facie case, thereby creating a presumption of discrimination, the burden of production then shifts to the employer "to articulate some legitimate, nondiscriminatory reason for" its action(s). McDonnell Douglas, supra, 411 U.S. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 678. If the employer meets its burden, the plaintiff must overcome the burden of proof by a preponderance of the evidence, demonstrating that the employer's "legitimate" reason was merely a pretext for discrimination. Id. at 804, 93 S. Ct. at 1825, 36 L. Ed. 2d at 679; Fuentes v. Perskie, 32 F.3d 759, 763-64 (3d. Cir. 1994).

In the context of summary judgment, if the employer carries its burden, "the plaintiff must [then] point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Fuentes, supra, 32 F.3d at 764. In order to sufficiently discredit the employer's reason, and thus to survive summary judgment, the plaintiff "must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in" the proffered reason that a factfinder could reasonably find it incredible. Id. at 765.

1. Charles B. Williams.

Williams alleges that the promotion of two white men to two of the three deputy chief positions discriminated against him, a black man. He focuses on the failure of the prosecutor to post the vacancies and to solicit applications. Sharif focuses on the difficulties she encountered when promoted to office supervisor and the disparity in authority between her and others who hold the same title. We address the Williams claim first.

Williams established that he is a member of a protected class. The motion judge held that he did not establish the second prong or criterion, that he applied or was qualified for promotion, because he did not apply for the position. This reasoning begs the very question presented by Williams. He asserts that the policy invoked by Campolo was discriminatory because it precluded consideration of anyone other than someone who knew the position was open and would be filled.

Numerous courts have also found that a plaintiff's failure to apply for a position in the face of word of mouth promotional policies does not preclude establishment of a prima facie case of discrimination under Title VII. See Lyoch v. Anheuser-Busch Cos., 139 F.3d 612, 615 (8th Cir. 1998) (where "promotions policy was informal and subjective," the plaintiff bears lesser burden than when criteria are objective and applied to all applicants); Chambers v. Wynne Sch. Dist., 909 F.2d 1214, 1217 (8th Cir. 1990) (formal application not required when job not posted and either "(1) the plaintiff had no knowledge of the job from other sources until it was filled, or (2) the employer was aware of the plaintiff's interest in the job notwithstanding the plaintiff's failure to make a formal application"); Box v. A & P Tea Co., 772 F.2d 1372, 1376-77 (7th Cir. 1985) ("when an employer uses a promotion system in which employees do not apply for promotions but rather are sought out by managers, the application requirement of the prima facie case is loosened somewhat"), cert. denied, 478 U.S. 1010, 92 L. Ed. 2d 724, 106 S. Ct. 3311 (1986); Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1132-33 (11th Cir. 1984) (plaintiff "not required to ask specifically for . . . job when he did not know about it and where there was no formal mechanism for expressing his interest" and noting "such subjective procedures can lead to racial discrimination").

A Third Circuit case, EEOC v. Metal Service Co., 892 F.2d 341, 349 (3d Cir. 1990), noted that "[a] relaxation of the application element of the prima facie case is especially appropriate when the hiring process itself, rather than just the decision-making behind the process, is implicated in the discrimination claim or is otherwise suspect." The court found the employer's informal word-of-mouth hiring process, "in conjunction with an all white workforce," was "strong circumstantial evidence of discrimination." Id. at 350. See also Newark Branch, NAACP v. Harrison, 907 F.2d 1408, 1414 (3d Cir. 1990) ("if the plaintiff did everything reasonably possible to make known to the employer the plaintiff's interest in applying for a job," formal application was not necessary). Thus, we conclude that dismissal of the Title VII claim based on Williams' failure to apply for one of the deputy chief positions was erroneous.

Williams was also required to submit sufficient evidence to establish a prima facie case that he was qualified for the promotion. Williams denied knowledge of the qualifications for the deputy chief positions. Here, too, however, Williams was never informed that applications were invited for the positions or even informed of the qualifications for the positions.

Campolo admitted that he did not compare the qualifications of any candidates. When asked if he drew any conclusions as to the qualifications of existing ECPO employees for the position given to Rogers, who was not an ECPO employee, Campolo responded that he was unsure whether his "reasoning process got that far." With respect to the position given to Praschak, an ECPO lieutenant, he admitted that he did not consider the qualifications of any captains or other lieutenants prior to making his decision. Campolo offered no explanation why he failed to consider Williams for the openings other than that he believed Rogers and Praschak were the only viable candidates.

Although Rogers's and Praschak's resumes appear more extensive as far as experience and commendations are concerned, it is impossible to determine from the summary judgment record whether or not Williams was equally or better qualified for the positions. The fact that Praschak possessed the same rank as Williams at the time of his promotion further obscures the question of whether Williams was qualified. Based on the same facts, for summary judgment purposes, Williams also satisfied the third and fourth criteria: that he was rejected for the promotion in spite of his qualifications and that similarly situated individuals were promoted in his place.

The next step in the McDonnell Douglas framework shifts the burden of production to defendants who must "articulate some legitimate, nondiscriminatory reason for" their decision not to promote Williams. McDonnell Douglas, supra, 411 U.S. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 678. Defendants contend that Campolo's observations while overseeing the ECPO led to his conclusion that Rogers and Praschak were the only viable candidates for the deputy chief positions due to their experience, hardworking natures, and willingness to go beyond their specific duties. In Rogers's case, Campolo also valued his lengthy experience with the Newark Police Department.

Because defendants articulated legitimate reasons for their actions, Williams was required to "demonstrate [] weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in" those reasons that would allow a reasonable factfinder to either disbelieve the reasons or believe a discriminatory pretext was more likely the true reason for defendants' actions. Fuentes, supra, 32 F.3d at 765. Williams does not specifically allege that defendants' proffered reasons for promoting Rogers and Praschak were pretexts for discrimination, nor is there sufficient evidence in the record to allow a reasonable factfinder to disbelieve Campolo or believe his reasons were pretextual. Thus, the order granting summary judgment to defendants and dismissing Williams' Title VII claim was proper.

2. Shahidah B. Sharif

Sharif's Title VII claim is based on an entirely different set of facts. Her claims revolve around her appointment to the office supervisor position.

In her oral opinion, the motion judge noted that Sharif did not address whether other employees were Muslim and that omission caused her discrimination claim to fail. Her discrimination claims also failed because she presented no evidence that O'Brien's actions were attributable to the ECPO. Moreover, the judge reasoned that Sharif occupied the position and received the salary attributable to the position throughout the entirety of the administrative proceedings, and that she failed to provide any evidence that she was treated differently than Casale and O'Brien.

Addressing Sharif's motion for relief from judgment, the judge held that Sharif received the appointment to the position she claimed had been denied to her. Therefore, she held that Sharif did not establish that she was denied a promotion based on race or religion.

Sharif established the first two prongs of the McDonnell Douglas test: she is a member of protected classes and she applied for a promotion for which she was qualified. However, because she was appointed to the position that she sought and for which she was qualified and obtained the salary adjustment commensurate with the position, Sharif could not establish that she was rejected for the position despite her qualifications and that another similarly qualified individual was promoted in her stead. O'Brien's actions suggest hostility to her appointment; however, the record establishes unequivocally that Campolo and another senior prosecutorial staff member supported Sharif's appeal and promptly effectuated every ruling in her favor.

On appeal, Sharif contends that the trial judge should have considered her alleged diminished job responsibilities in deciding whether she established a prima facie case of discrimination, and she further argues that the "indignities" she suffered constituted discriminatory retaliation. She contends that her supervisory role was so significantly diminished as to constitute an adverse employment action because she: (1) was prohibited from making personnel decisions with respect to her subordinates; (2) was excluded from meetings which other supervisors attended; (3) received fewer fringe benefits than those given to other supervisors; and (4) was not permitted to join the union.

We do not consider this claim. Sharif did not allege in her complaint either a Title VII retaliation claim or that she suffered severely diminished job responsibilities due to her religion or race. See In re Contest of Nov. 8, 2005 Gen. Election, 388 N.J. Super. 663, 675-76 (App. Div. 2006) (pleading must notify adverse party of claims), aff'd in part, 192 N.J. 546 (2007). See also R. 4:5-2 (requiring pleading setting forth claim for relief to include statement of facts on which claim is based and demand for judgment).

B. 42 U.S.C.A. 1983 claim.

Williams alleges that defendants violated his Fourteenth Amendment rights by establishing an office-wide word-of-mouth policy for use in any personnel action. He argues that this policy created barriers for minorities which prevented his advancement by denying equal access to promotions and training programs. He also alleges a racially discriminatory policy with respect to training opportunities.

42 U.S.C.A. 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .

Liability under 1983 cannot attach either to states or those governmental entities that are arms of the state because neither are considered "persons" under the statute, or to state officials acting in their official capacities. Will v. Mich. Dep't of State Police, 491 U.S. 58, 64-71, 109 S. Ct. 2304, 2308-12, 105 L. Ed. 2d 45, 53-58 (1989). Municipalities and local governmental entities, however, are subject to liability under 1983 because they are not protected by the Eleventh Amendment. Id. at 70, 109 S. Ct. at 2312, 105 L. Ed. 2d at 57.

In order to succeed on 1983 claims, plaintiffs must "provide evidence [of the existence of] a relevant [employer] policy or custom, and [show] that the policy caused the constitutional violation they allege." Natale v. Camden County Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003); see also Monell v. N.Y. City Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38, 56 L. Ed. 2d 611, 638 (1978) (liability attaches when injury results from "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy"). A "[p]olicy is made when a 'decisionmaker possess[ing] final authority to establish municipal policy with respect to the action' issues an official proclamation, policy, or edict." Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) (quoting Pembauer v. City of Cincinnati, 475 U.S. 469, 481, 106 S. Ct. 1292, 1299, 89 L. Ed. 2d 452, 464 (1986)). A custom, on the other hand, "has not been formally approved by an appropriate decisionmaker," but is "so widespread as to have the force of law." Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404, 117 S. Ct. 1382, 1388, 137 L. Ed. 2d 626, 639 (1997).

With respect to opportunities for training, the record supports the grant of summary judgment. Upon their appointments to the ECPO, Campolo and Becker hired Muncey as a full-time training officer and instructed him to establish a training program and written guidelines. Muncey created a training inventory and posted relevant courses through supervising lieutenants. He located programs based on the needs of particular investigators and worked with the lieutenants to ensure that all interested parties received appropriate training. Campolo, as the acting prosecutor and final authority on issues of policy, was not directly involved in the training program, other than to hire Muncey to oversee it.

Williams offered no evidence of a discriminatory policy with respect to training. Although he claimed he and other minorities were not provided with a list of available programs, he produced no evidence suggesting white employees received such a list. Furthermore, although he alleges he could not request any training without reference to a list of possible programs, Williams neither identified training opportunities he requested but was denied, nor alleged that he requested information about training opportunities but was denied.

Similarly, Williams presented no evidence indicating that Campolo established an office-wide word-of-mouth policy to be used in employment decisions. Although he admittedly promoted two individuals to deputy chief positions based on word of mouth, he established a posting process for other job openings to lower-level positions. Campolo's limited use of the word-of-mouth process was, therefore, insufficient to support a finding of the existence of a discriminatory policy that had permeated the selection processes for all employment and advancement opportunities within the ECPO. Andrews, supra, 895 F.2d at 1480. Moreover, the evidence did not support existence of a discriminatory custom because plaintiffs failed to show that word-of-mouth selection procedures were "so widespread as to have the force of law." Bd. of County Comm'rs of Bryan County, supra, 520 U.S. at 404, 117 S. Ct. at 1388, 137 L. Ed. 2d at 639.

Turning to Williams' 1983 failure-to-promote claim, it, like his Title VII claim, does not raise any genuine issues of material fact that should be submitted to a jury. There is no evidence to support a finding that Campolo, by promoting Rogers and Praschak without considering any other qualified candidates, created a discriminatory policy or custom governing the selection process for employment positions within the ECPO. In fact, Campolo's deposition testimony about his plan to implement a posting procedure for other positions, as well as evidence of those postings, suggests the opposite. The fact that Campolo utilized a word-of-mouth procedure for two high-level positions is insufficient to establish the existence of a discriminatory policy or custom, particularly since, under Title VII, defendants provided legitimate reasons for promoting Rogers and Praschak without openly posting the positions.

Thus, the evidence, when viewed in the light most favorable to Williams, is insufficient to suggest the possibility that Campolo established a practice of offering promotions on the basis of subjective criteria, and that the establishment of this practice created a potentially discriminatory policy or custom within the ECPO. Brill, supra, 142 N.J. at 540.

C. State Immunity.

Plaintiffs also argue that the State is not immune from suit under 42 U.S.C.A. 1983. We disagree.

The Eleventh Amendment of the United States Constitution provides "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const., amend. XI. Lawsuits brought by an individual against a state are barred unless either authorized by Congress under the Fourteenth Amendment or the state consents to jurisdiction. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 670, 119 S. Ct. 2219, 2223, 144 L. Ed. 2d 605, 613 (1999). "Although the text of the [Eleventh] Amendment refers only to suits against a State by citizens of another State, [the United States Supreme Court has] repeatedly held that an unconsenting State also is immune from suits by its own citizens." Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440, 446, 124 S. Ct. 1905, 1909, 158 L. Ed. 2d 764, 774 (2004). The state's immunity "extends to state agencies and to state officers, who act on behalf of the state and can therefore assert the state's sovereign immunity." Natural Res. Def. Council v. Cal. Dep't of Transp., 96 F.3d 420, 421 (9th Cir. 1996).

The same principles apply to federal claims brought against a state in state court. Alden v. Maine, 527 U.S. 706, 745-46, 119 S. Ct. 2240, 2262, 144 L. Ed. 2d 636, 672-73 (1999). Thus, if the state, including its agencies and officers, has not expressly waived immunity, federal claims may not be brought against it in either federal or state court. See Allen v. Fauver, 327 N.J. Super. 14, 17-18 (App. Div. 1999), aff'd, 167 N.J. 69 (2001).

Plaintiffs' argument is supported by cases that involve lawsuits against municipalities, which are not immune from suit under 1983. See Monell, supra, 436 U.S. at 690-91, 98 S. Ct. at 2035-36, 56 L. Ed. 2d at 635 (language of 1983 includes municipalities within the term "persons"); McNabola v. Chi. Transit Auth., 10 F.3d 501, 509 (7th Cir. 1993) (municipality may be liable, but not under theory of respondeat superior); Agresta v. City of Phila., 694 F. Supp. 117, 122 (E.D. Pa. 1988) (municipalities or other local government units may be liable under 1983); Morgan v. Union County Bd. of Chosen Freeholders, 268 N.J. Super. 337, 347, 362-63 (App. Div. 1993) ( 1983 claim brought against local governmental body), certif. denied, 135 N.J. 468 (1994).

The Supreme Court in Monell, supra, 436 U.S. at 690, 98 S. Ct. at 2035-36, 56 L. Ed. 2d at 635, explicitly held that local governmental bodies "can be sued directly under 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." It noted that the Eleventh Amendment is not "a bar to municipal liability," and that its holding regarding 1983 liability was "limited to local government units which are not considered part of the State for Eleventh Amendment purposes." Id. at 690 n.54, 98 S. Ct. at 2036 n.54, 56 L. Ed. 2d at 635 n.54.

In Will, supra, the Supreme Court found that:

Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity, or unless Congress has exercised its undoubted power under 5 of the Fourteenth Amendment to override that immunity.

[491 U.S. at 66, 109 S. Ct. at 2309-10, 105 L. Ed. 2d at 55 (citation omitted).]

The Court extended its holding to state officials acting in their official capacity because, although state officials are literally persons, "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office." Id. at 71, 109 S. Ct. at 2312, 105 L. Ed. 2d at 58. It further noted that, in the context of suits against states, "the sovereign cannot be sued in its own courts without its consent." Id. at 67, 109 S. Ct. at 2310, 105 L. Ed. 2d at 55.

Thus, the State was immune from a 1983 suit for either its own actions or Campolo's, when he was acting as a state official. See also Fuchilla v. Layman, 109 N.J. 319, 323-24 (State not person under 1983 and is protected from suit in federal courts by Eleventh Amendment), cert. denied sub nom Univ. of Med. & Dentistry v. Fuchilla 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988); Scott-Neal ex. rel. Scott v. N.J. Dep't of Corr., 366 N.J. Super. 570, 575 (App. Div. 2004) (holding that State is not person under 1983 and is thus immune from liability); Popek v. State Dep't of Human Servs., 240 N.J. Super. 128, 133 (App. Div. 1990) (State not person for purposes of 1983).

D. CEPA.

Plaintiffs also urge that the motion judge should not have dismissed their CEPA claims as time barred. We hold that the claims were properly dismissed on this basis.

CEPA prohibits retaliatory employment action against employees who: (1) disclose, or threaten to disclose, activities that they believe to be illegal, fraudulent, or criminal; (2) provide information or testify about violations; or (3) object to or refuse to participate in activities they believe to be illegal, fraudulent, criminal, or against public policy. N.J.S.A. 34:19-3. CEPA defines retaliatory action as "the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." N.J.S.A. 34:19-2e. N.J.S.A. 34:19-5 establishes a one-year statute of limitations time frame for CEPA claims.

Williams cites to his activities as first vice president of the minority employees organization, the letter sent by the organization to the EEOC and the Attorney General complaining about discriminatory employment practices at ECPO, and a threat by Campolo after the organization held a meeting attended by the press as actions which subjected him to retaliatory treatment and an example of retaliatory treatment. The record demonstrates, however, that the activities cited by Williams all occurred after Rogers and Praschak were appointed to the deputy chief positions. In other words, the appointment of others to the deputy chief positions could not have been retaliation for after-occurring events. Plaintiffs continuing violations theory has been raised for the first time on appeal and we will not consider this contention. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973).

E. Amendment of Complaint.

Finally, plaintiffs argue that the motion judge should have allowed them to amend their complaint to assert a cause of action under the LAD. Although motions to amend a complaint are normally freely granted, Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998), the decision is also vested in the discretion of the motion judge.

Here, the complaint was first filed on July 31, 2002. The motion to amend the complaint was not filed until 2006 in response to motions for summary judgment filed by defendants ECPO and the State. Lapse of time is a relevant consideration but not determinative, particularly when the claim plaintiffs seek to add is closely related to or based on the same factual allegations as previously asserted claims. Coastal Group, Inc. v. Dryvit Sys., Inc., 274 N.J. Super. 171, 181 (App. Div. 1994), remanded in part, 147 N.J. 574 (1997).

Claims under the LAD are analyzed under the same framework as Title VII claims, Gerety v. Atlantic City Hilton Casino Resort, 184 N.J. 391, 399 (2005); therefore, we discern no error in denying the requested relief. Plaintiffs failed to meet the McDonnell Douglas test and their Title VII claims were properly dismissed. Further amendment of the complaint to assert an LAD claim would be futile.

We, therefore, affirm the October 6, 2006 orders granting defendants' motions for summary judgment and the July 5, 2007 order denying plaintiffs' motion for reconsideration.

Affirmed.

 

Williams' complaints do not extend to this third deputy chief position.

Due to longevity, Sharif actually received $73,282.

The other plaintiffs have since settled their claims.

In the interlocutory appeal in this case, this court found that the State was not liable for Campolo's actions at the time he was acting "'as an administrator, including his . . . conduct with respect to personnel decisions.'" Embrey v. State, No. A-3948-02 (App. Div. Feb. 20, 2004) (slip op. at 7) (quoting DeLisa v. County of Bergen, 326 N.J. Super. 32, 40 (App. Div. 1999), rev'd on unrelated grounds, 165 N.J. 140 (2000)). We noted that the New Jersey Supreme Court, in Wright v. State, 169 N.J. 422, 454 (2001), expressly adopted the distinction between a prosecutor functioning as an agent of the State when combating crime and acting as agent of the county when performing administrative tasks. This court found that because, here, "plaintiffs' claims against Campolo and the [ECPO] rest solely on alleged discriminatory and retaliatory personnel decisions[,] . . . the County rather than the State has the responsibility for providing a defense." Although this court did not address the issue of the State's immunity from 1983 claims, it did limit any liability on behalf of the State under any claims to the brief time period during which Campolo was not appointed Acting Prosecutor.

Due to our disposition of plaintiffs' Title VII claim, we need not address whether these claims were properly dismissed against the State for failure to exhaust administrative remedies.

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A-6499-06T3

August 4, 2009