ELDRIDGE HAWKINS II v. JOHN FEDER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4004-10T2

ELDRIDGE HAWKINS II,

Plaintiff-Appellant,

v.

JOHN FEDER, JAMES ABBOTT,

Individually and Officially,

JOHN K. SAYERS1 and TOWNSHIP OF

WEST ORANGE,

Defendants-Respondents.

______________________________

November 15, 2012

Argued September 20, 2012 - Decided

Before Judges Fuentes, Grall and Ashrafi.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Docket No. L-6761-08.

Eldridge Hawkins argued the cause for

appellant.

Mark Moon and Steven C. Mannion argued the

cause for respondents (Trenk, DiPasquale, Della Fera & Sodono, P.C., attorneys for respondent Township of West Orange; DeCotiis, Fitzpatrick & Cole, L.L.P., attorneys for respondents John Feder, James Abbott and John K. Sayers; Richard D. Trenk, Mr. Moon and Mr. Mannion, on the joint brief).

PER CURIAM

The litigation that led to this appeal is based on a charge of wage discrimination allegedly attributable to preferential hiring dates given to police officers with Irish ancestry. Along with plaintiff, they were appointed to the West Orange Police Department (Department) in 2004. Plaintiff asserts that as a consequence of their favorable hiring dates, the Irish officers reached the second step of the pay scale in January 2005, a year before he did, and consequently have been and will continue to be paid more for work done after that date.

Plaintiff first filed suit in August 2007 in Federal District Court. He filed this complaint in State court in August 2008, after the District Court concluded that his federal claims were time-barred and dismissed the state law claims. On January 4, 2011, the trial court dismissed the complaint as subject to and barred by a two-year limitations period that commenced when plaintiff was hired. On March 18, 2011, the court denied reconsideration and leave to file an amended complaint.

When the court dismissed the action in January 2011, the only claims remaining were violations of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and violations of the Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, which are premised on provisions of the State Constitution prohibiting discrimination and establishing a system of public employment based on merit and fitness. N.J. Const. art. I, 1, 5 and art. 7, 1, 2. By prior orders, the court disposed of plaintiff's other claims as follows: 1) an order of March 19, 2009 dismissed with prejudice and denied leave to amend his claims against the Department, dismissed with prejudice and denied leave to amend his claims based on conduct criminalized in Title 2C, and granted plaintiff leave to add claims asserting torts and violations of the CRA; 2) an order of August 14, 2009 dismissed his contract and tort claims based on discrimination; and 3) an order of November 20, 2009 dismissed negligence claims.2

Plaintiff appeals. Although we reject all other claims of error, we agree that Alexander v. Seton Hall University, 204 N.J. 219, 234-36 (2010), permits him to proceed with an action to recover for disparate wages paid during the two-year period preceding the filing of his complaint even though the discriminatory act giving rise to the disparity occurred outside the limitations period. Accordingly, we remand those claims for further proceedings and affirm the court's determinations on all other issues.

Defendants urge us to consider and grant a motion for summary judgment on the merits. That motion was pending and not resolved when the court dismissed the complaint as time-barred. Because the record on appeal does not include a "statement of all items submitted to the court on the summary judgment motion," R. 2:6-1(a)(1), or defendants' statement of undisputed facts and the briefs submitted to the trial court, R. 4:46-2(a), this is not a case appropriate for exercise of this court's original jurisdiction. R. 2:10-5.

I

Eldridge Hawkins II is the plaintiff. The defendants are the Department; the police director, John K. Sayers; the police chief, James Abbott; and an officer, Sergeant Feder, of the Department's internal affairs unit assigned to oversee the background checks done on those named on the civil service list of persons eligible for appointment as police officers in West Orange as of March 2004.

Plaintiff describes himself as an African American male of "brown" color. Director Sayers and Chief Abbott acknowledge Irish ancestry. The two officers of Irish ancestry who plaintiff claims were given preferential hiring dates are Brad W. Squires, who is of "Irish descent," and William D. Sayers, who is the nephew of Director Sayers and whose ancestors are Italian, Irish, German and English. Plaintiff identifies three other officers hired in 2004 who were treated less favorably than Squires and Sayers. They are Partick J. Matullo, III, Michelle A. Nagle and John A. Rolli. Although the Department does not inquire about an applicant's ancestry, since the commencement of this litigation all of the allegedly disfavored officers, including plaintiff, have claimed to have some Irish ancestors.

The hiring and appointment of officers of the Department is subject to West Orange No. 1592-99; to the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6; and to state laws governing the organization of municipal government and police departments and requiring departments to give officers temporary or probationary appointments until they complete training at a school approved by the State's Police Training Commission. N.J.S.A. 40:69A-32, -43 (municipal government); N.J.S.A. 40A:14-118 (organization of police departments); N.J.S.A. 40A:14-122 (qualifications of police officers); N.J.S.A. 52:17B-67 to -69.1 (police training).

By West Orange ordinance, the mayor has the authority to appoint police officers, but the mayor may assign that duty to a police director. The mayor of West Orange appointed Director Sayers, and Director Sayers made the appointments at issue in this case.

The West Orange ordinance also sets forth standards for appointment of police officers eligibility based on civil service testing; satisfaction of statutory qualifications, including being a person of "good moral character" who has not been "convicted of any criminal offense involving moral turpitude," N.J.S.A. 40A:14-122(4); and capacity to perform duties as confirmed by physical and psychological examination. In addition, the ordinance provides a preference for candidates residing in West Orange.

In West Orange, a collective bargaining agreement governs a police officer's base salary and the amount of an increment based on service. It sets forth a base training salary that an officer receives from his or her hiring date until completion of the requisite police training, which was $34,285 in 2004; a "minimum step salary" that is the salary an officer receives upon "graduation from the police academy," which was $42,145 in 2004; and five "increment" step salaries between the "minimum step" and "maximum step," which was $69,955 in 2004. The first "increment" step salary was $46,779 in 2004 and $48,557 in 2005. Under another ordinance, Section 9-10.5 of the West Orange Code, officers who have not been promoted receive increments effective January 1 of each year until they reach maximum salary for the position. The date the officer's "employment commences" determines whether the officer receives the initial increment on the first or second January 1 following appointment. Ibid. Officers whose employment commences by July 10 receive an increment the following January, but those officers whose "employment commences after July 10 in any given year . . . shall not be eligible for a salary increment on January 1 following his/her hiring, but must wait until the January 1 following the first anniversary of the commencement of employment." Ibid.

The record establishes that for purposes of Section 9-10.5, the Department deemed that employment commences for an officer without training on the date the officer is hired and assigned to attend training and paid the base training salary. Additionally, there is no dispute that the salary of a public employee in West Orange is deemed public information that is available on request.

Officer Sayers was hired as a police officer on January 12, 2004, about six months before the other officers appointed that year. Although the civil service list used in January 2004 is not in the record, there is no dispute that Officer Sayers was appointed from a civil service list of persons eligible for appointment and qualified. Because Officer Sayers did not have the statutorily mandated police training, he was paid the base training salary and began his service for the Department by training at a police academy in January 2004.

During training, Officer Sayers had a medical incident, was removed from the program pending medical clearance and placed on light duty as a communications officer. The work Officer Sayers did on that assignment was similar to the work he had done while employed as a civilian telecommunications operator for the Department before he was hired as a police officer. That work is included as one of the "supportive duties" a police officer may be assigned under Civil Service Commission Job Specification 02728.

After receiving medical clearance, Officer Sayers was re-enrolled in a different academy in July 2004 and graduated at about the same time as the officers who were hired and enrolled in training in July 2004. He first received the "minimum step" salary in December 2004, as did the other officers who completed training at the same time. Because he was hired as a police officer on January 12, 2004, however, he received his first increment effective January 1, 2005, ahead of the officers whose employment commenced after July 10, 2004.3

Each of the four officers who commenced employment as a police officer in West Orange in July 2004 was on the civil service list of eligible West Orange residents issued in March 2004.4 Sergeant Feder contacted those eligible to determine whether they were interested and available, and he oversaw the background investigations of those who were.

In order of their ranking, the eligible and interested officers were Matullo, Nagle, plaintiff, Squires and Rolli. Feder assigned another officer to gather the background information, which he reviewed. Feder gave Chief Abbott a report on each and recommended that all of them remain in consideration for appointment. He transmitted the reports as follows: Matullo's on June 14, 2004; Squires' on June 15; Rolli's on June 16; and Nagle's and plaintiff's on June 18. Feder's report on Nagle, who had been considered for appointment on a prior occasion, but had not been cleared after medical testing, recommended she be given new evaluations.

Squires was the only one of the candidates who had completed police training at an approved school. In fact, he was serving as a police officer in a neighboring municipality when contacted by Feder. Squires was aware of the relationship between the hiring date and annual increments in West Orange, and he indicated that he would not accept an appointment unless hired before July 10. Director Sayers and Chief Abbott discussed Squires' position, and the Chief recommended his appointment. Director Sayers made the decision to hire him to start work on July 9. Because Nagle had not yet been medically cleared for appointment, Director Sayers considered Squires to be among the top three eligible candidates available. He selected Squires because he did not need police training and hiring him would avoid the need to pay him for five months of attending training.

Squires commenced employment on July 9, did paperwork and took his oath that day. There is no evidence that he did any other work on July 9. Because Squires had completed training, he was assigned to regular duty and received the base salary for a police officer. Because his employment commenced on July 9, 2004, he received his first increment in January 2005.

Plaintiff, Matullo and Rolli commenced employment on July 12, 2004. Because Nagle did not clear the health screening until July 20, she commenced employment on July 23, 2004. On their first day of work, plaintiff, Matullo, Rolli and Nagle were assigned to train at an approved academy. With the exception of Matullo, who was injured during training and did not complete the program, by December 2004 these officers graduated, took the oath of office and received a salary increase from the base training rate to the "minimum step" rate, which they had received since commencing employment. At that point, those officers and Officer Sayers were earning what Squires had earned since July 9 and was still earning.

The Department maintains a roll book that lists the names of its officers in the order of the date they commenced employment as an officer. Next to each officer's name is the identification number assigned by the Department. The identification numbers, unlike the order of names in the roll book, are assigned with reference to the officer's position on the civil service list, not employment date. Thus, the identification numbers do not coincide with the officers' order in the roll book. Newly assigned officers check the roll book to ascertain their respective shift assignments, and overtime is assigned based on an officer's position in the roll book.

According to plaintiff, he did not know that Sayers and Squires were being paid at a rate higher than him until sometime in 2007. That is when Rolli told plaintiff that he had discussed the issue with Squires, who informed Rolli of the pay differential.

II

We first consider whether plaintiff's claims under the LAD and CRA are subject to the two-year statute of limitation applicable to "action[s] at law for an injury to the person caused by the wrongful act, neglect or default of any person within this State." N.J.S.A. 2A:14-2. With respect to claims under the LAD, the Supreme Court has determined that the two-year limitation period applicable to suits based on personal injury applies "to all LAD claims." Montells v. Haynes, 133 N.J. 282, 286 (1993).

In contrast, the Court has not addressed the limitations period applicable to the CRA. Because the only question presented on this appeal is whether the complaint is time-barred, to resolve that question we assume, but in no way decide or intimate, that plaintiff has a viable claim under the CRA. Based on the Court's reasoning in Montells, we conclude that the two-year limitations period for personal injury applies to the violations of the CRA plaintiff has alleged.

In Montells, the Court's selection of the proper limitations period for LAD claims required consideration of "whether injuries under LAD are more like an 'injury to the person' under N.J.S.A. 2A:14-2 or like injuries under N.J.S.A. 2A:14-1, specifically those arising from breach of contract or from 'any tortious injury to the rights of another not stated in sections 2A:14-2 . . . .'" Id. at 291. Recognizing that "courts have viewed 'tortious injury to the rights of another' as applying primarily to actions for economic loss," the Court nevertheless concluded the limitations for personal injury should apply. Id. at 291-92.

In reaching that conclusion, the Court relied, in part, on the reasoning of the United States Supreme Court in Goodman v. Lukens Steel Co., 482 U.S. 656, 661-62, 107 S. Ct. 2617, 2621, 96 L. Ed. 2d 572, 582 (1987), a decision considering the appropriate limitations period for a claim under the federal civil rights law addressing discrimination, 42 U.S.C.S. 1981.5 See Montells, supra, 133 N.J. at 293. In Goodman, the Supreme Court reasoned that "'Section 1981 has a much broader focus than contractual rights'" and the fact that the statute "'has far-reaching economic consequences does not change this conclusion [that the personal injury statute of limitations should apply], since such impact flows from guaranteeing the personal right to engage in economically significant activity free from racially discriminatory interference.'" Ibid. (alternation in original) (quoting Goodman, supra, 482 U.S. at 661-62, 107 S. Ct. at 2621, 96 L. Ed. 2d at 582).

Agreeing with Goodman, the Montells Court noted: "Although LAD similarly vindicates economic rights and some rights that sound in contract, the statute strikes directly at conduct that injures the personhood of another. A discrimination claim cuts most deeply at the personal level." Ibid.

With respect to the statute of limitations, there is no basis for distinguishing LAD claims from the CRA claims that plaintiff asserts. His CRA claims are based on conduct that he alleges offend provisions of our State Constitution prohibiting discrimination and requiring that decisions involving public employment be made on the basis of merit and fitness. The offense he perceives is a preference the defendants extended to officers of Irish ancestry and denied to him because he was not considered to share that ancestry. This is an injury to his "personhood" cutting most deeply "at the personal level." See ibid.

The "personal" nature of his complaint is clear. Plaintiff has not shown that he was denied an appointment or salary to which he was entitled under any law or the collective bargaining agreement. Instead, he claims others were paid more than him because they were employed before him, but he has not shown that he or any of the officers he views as disfavored were entitled to be hired when Sayers or Squires were. These officers needed police training, and there is no evidence that there was a class available on July 9, when Squires was hired, or that any one of them was eligible for appointment in January, when Officer Sayers was hired and sent to training.

III

We also reject plaintiff's claim that the trial court erred in concluding the discovery rule did not toll the running of the limitations period. The trial court determined that because of the District Court's determination that the discovery rule did not apply to save plaintiff's federal law claims, plaintiff could not re-litigate the issue. Without addressing the significance of the District Court's determination that plaintiff could not invoke the discovery rule because he had not established that "he would not have discovered his alleged injury with the exercise of reasonable diligence," plaintiff suggests the trial court erred.

It is not necessary to decide whether the trial court properly relied on principles of issue preclusion, however. The trial court also considered the record presented on the motion and independently determined that the discovery rule did not apply to plaintiff's state law claims.

In deciding the question, the trial court considered whether plaintiff had made the showing necessary to invoke the discovery rule under New Jersey law in order to save his state law claims from dismissal as time-barred. Quoting Phillips v. Gelpke, 190 N.J. 580, 595 (2007), the trial court noted that in order to invoke the discovery rule: "plaintiffs must explain why they reasonably could not have discovered their cause of action in time to comply with the limitation period." And, the trial court determined that Squires' immediate assignment to duty while plaintiff was required to attend the academy, by itself, was "reason to start using due diligence to find out why Squires was in uniform collecting salary while plaintiff was in the academy." The court also agreed with the District Court's finding that salaries were a matter of public record and concluded that plaintiff had not shown due diligence. Those facts are supported by the record and undisputed.

Indeed, on this record the correctness of the trial court's determination is clear. Although there is evidence that plaintiff was first told about the disparity in wages in 2007, there is also undisputed evidence that plaintiff should have been aware of the inevitability of the wage disparity resulting from Squires earlier commencement of work from the outset of his employment. By force of Section 9-10.5 of the West Orange Code, plaintiff was not entitled to receive his first increment in January 2005, but Squires and Sayers were. The fact that their employment commenced prior to plaintiff's was evident from the roll book, and plaintiff never asserted that he did not know Squires and Sayers commenced employment with the Department as police officers before him. In short, plaintiff did not explain why he "reasonably could not have discovered" his alleged injury earlier. Phillips, supra, 190 N.J. at 595.

Plaintiff suggests that the court should not have decided whether the discovery rule applied without a testimonial hearing. While such a hearing is required when necessary to resolve a question of credibility material to application of the discovery rule, there was none in this case. See Lopez v. Swyer, 62 N.J. 267, 275-76 (1973). Contrary to plaintiff's claim, the question was not when he "knew" but whether he would have known earlier if he had exercised due diligence.

IV

As noted at the outset of this opinion, plaintiff is correct in arguing the trial court erred in applying the limitations period to bar his claims for discriminatory wages paid within the two-year period preceding the filing of his complaint. His initial complaint clearly alleged wage disparity attributable to discrimination that had occurred and would continue. The trial court's determination, which rested on the assumption that the date of the discriminatory act controls, is in direct conflict with the Supreme Court's decision in Alexander. In that respect, New Jersey and federal law differ. See Alexander, supra, 204 N.J. at 234-36.

For the foregoing reasons, in the event plaintiff survives defendants' pending motion for summary judgment, he must be permitted to pursue his claim for discriminatory wages paid during the limitations period. The parties have not briefed the question of whether the two-year period should run from the date plaintiff filed his complaint in District Court or state court. Accordingly, we leave that determination to the trial court if a dispute arises on remand. V

We have considered the arguments plaintiff presents concerning the trial court's denial of his motions to amend his pleadings, and we have determined that his challenges have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). It suffices to note that plaintiff has not presented any argument to establish error in a particular ruling on a motion to amend. Additionally, to the extent plaintiff argues that the court erred in denying his requests to assert claims based on events that occurred after the filing of his complaint so that he could show a "continuum," his position is in conflict with assertions he made during a motion hearing on March 19, 2010. At that hearing, plaintiff's counsel advised the trial court he "would sever whatever came after the complaint" to avoid further delay of this action. In fact, plaintiff filed a separate action on December 15, 2010. Plaintiff's delayed retreat from that position favors affirmance of the court's discretionary decision to deny plaintiff leave to amend in March 2011. See Cutler v. Dorn, 390 N.J. Super. 238, 257-58 (App. Div. 2007) (finding no abuse of discretion in the denial of a motion to amend because of plaintiff's delay and prejudice to the defendants), aff'd in part, rev'd in part, 196 N.J. 419 (2008). Accordingly, the March 18, 2011 order denying plaintiff's motion to amend and consolidate is affirmed.

Affirmed in part; reversed in part; and remanded for further proceedings in conformity with part IV of this opinion. We do not retain jurisdiction.

1 Improperly pled as Jack Sayers.

2 Plaintiff's notice of appeal lists six orders that he intended to appeal, including those entered on January 4 and March 18, 2011. To explain what we will and will not address in this opinion, we discuss the relationship between the notice of appeal and the various rulings mentioned above here.

The order of August 14, 2009, which dismissed his contract and tort claims based on discrimination, is not among the orders listed in the notice of appeal, and, for that reason, plaintiff cannot obtain relief from that order. R. 2:5-1(f)(3)(A); Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994).

The March 19, 2009 order is listed, but plaintiff has not provided the transcript of the motion hearings of February 6 and March 6, 2009 that preceded the order and presumably include the trial court's findings and reasons as required by Rule 1:7-4. Because we do not have a record adequate to permit review of those determinations, we are unable to determine whether the court erred. Society Hill Condo. Ass'n, Inc. v. Society Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002). In any event, the brief on appeal includes no argument establishing error in rulings memorialized in the March 19, 2009 order. For that reason, any claim of error is abandoned. Muto v. Kemper Reinsurance Co., 189 N.J. Super. 417, 420-21 (App. Div. 1983).

Although an order of March 20, 2009 is listed in the notice of appeal, we do not have an order or a transcript of any motion hearing on that date; nor is any pertinent argument presented in plaintiff's brief. Thus, we deem any objections plaintiff may have had to an order entered on that date abandoned. Ibid.

The order of November 20, 2009 dismissing plaintiff's negligence claims is listed in the notice of appeal. Again, because plaintiff presents no argument objecting to their dismissal, any claim of error is abandoned. Ibid.

Plaintiff's notice of appeal lists an order entered on November 5, 2010, but no order entered on that date is included in the record. We have the transcript of that motion hearing, however, and it indicates that all relief was denied without prejudice. Accordingly, there is no determination to challenge.

3 For reasons not clear on this record, Officer Sayers' increase was not paid until early 2006, when he received a check for retroactive pay.

4

Pointing to an undated personnel form that lists a home address for Squires in a different municipality, plaintiff attempts to raise a doubt about Squires' residence in West Orange at the time of his appointment. But the new hire form Squires signed in July 2004 lists a home address in West Orange.

5 Section 1981 provides:

(a) Statement of equal rights. All persons

. . . shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

(b) "Make and enforce contracts" defined. For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c) Protection against impairment. The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

[42 U.S.C.S. 1981.]