SCOTT TURNER v. NEW JERSEY STATE POLICE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0203-07T20203-07T2

SCOTT TURNER,

Plaintiff-Appellant,

v.

NEW JERSEY STATE POLICE

and STATE OF NEW JERSEY,

Defendants-Respondents.

_________________________________

 

Submitted: October 15, 2009 - Decided:

Before Judges Stern and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Mercer County, Docket No. L-1721-04.

Herbert J. Tan, L.L.C., attorneys for appellant (Herbert J. Tan, on the brief).

Anne Milgram, Attorney General, attorney for respondents (Melissa H. Raksa, Assistant Attorney General, of counsel; Vincent J. Rizzo, Jr., Deputy Attorney General, on the brief).

PER CURIAM

Plaintiff appeals from an order granting summary judgment and dismissing his complaint under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 et seq. He complains that he was discriminated against in terms of promotional opportunities by virtue of his high State Police badge number, although he "was first in performance in [his] unit and second in seniority with respect to rank" in the Internal Affairs unit. According to plaintiff, Sergeant First Class (SFC) James Dukes told him this "his badge number had been a concern to Captain Coleman and Major Meddis," and that Coleman stated "other members had more time on and had to come first." Duke also told plaintiff that "[Captain] Theodos does not want to promote you. He thinks your badge number is too high."

We affirm the judgment substantially for the reasons stated by Judge Paul Innes in his oral opinion of August 3, 2007. We add only the following.

Plaintiff's claim is based on rank hearsay. He did not depose the non-party trooper he alleged to have advised him of the policy of the State Police or reasons he was not promoted. Moreover, he never moved to take discovery until after the May 20, 2007, discovery end date passed. The judge did not consider the motion for summary judgment until more than ninety days after the extended discovery end date. Significantly, there is no proof that badge numbers are based on a trooper's age as opposed to the date he or she entered service.

Nicholas Theodos, a retired Lieutenant Colonel, certified in support of defendant's motion and stated that "State Police badge numbers are issued chronologically" and are "indicative of when that trooper became a sworn member of the State Police." According to the uncontested certification, "a trooper's badge number is not indicative of that trooper's age." Theodos also certified that he felt others "were more qualified for promotion" than plaintiff and he "did not consider a Trooper's age" when he made promotional decisions.

Thus, badge numbers reveal length of service and there can be no age discrimination premised thereon ("an employee's age is analytically different from his years of service," Hazen Paper Co. v. Biggins, 507 U.S. 604, 611, 113 S. Ct. 1701, 1707, 123 L. Ed. 2d 338, 347 (1993)), and Turner was promoted faster than others in his graduating class.

A claim of age discrimination, premised on the number of the badge, could only be valid if everyone entered the service at the very same age, and that was not even asserted.

 
Affirmed.

Counts one and two are LAD claims the first based on a transfer of assignment from the Internal Affairs Investigation Bureau and failure to promote due to age, and the second based on retaliation for complaining to superiors about the discrimination. He alleges that, among other things, he "was passed over for a subsequent promotional opportunity." He does not assert any grounds for reversing the three other counts containing common law and constitutional claims other than through the general claim that "the lower court committed reversible error by failing to allow [] entire discovery."

The complaint was dated August 15, 2003, although no filing date is noted. He received a promotion to Sergeant First Class effective January 3, 2004. As the trial judge found, "six months after the events in which plaintiff claims he was passed over for promotion, plaintiff was promoted to sergeant first class. There is no adverse action here." "This is the very position that the opposing brief [on the summary judgment motion] claims he was denied." As of September 2006, plaintiff was the highest ranking person from his graduating class, and he is now assistant unit head.

There had been a prior extension of the discovery end date for 375 days.

Nicholas Theodos certified that as Captain he "was the Executive Officer of the New Jersey State Police Office of Professional Standards," that the Internal Affairs Investigation Bureau was "within the Office of Professional Standards," and that he made "promotion recommendations" in the Bureau based on "a number of factors including . . . job experience" and "length of service as a New Jersey State Trooper."

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A-0203-07T2

July 6, 2010