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NOT FOR PUBLICATION WITHOUT THE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-0

ELDRIDGE HAWKINS II,

Plaintiff-Appellant,

v.

JOHN FEDER, JAMES ABBOTT,

Individually and Officially,

JOHN K. SAYERS1 and TOWNSHIP

OF WEST ORANGE, WEST ORANGE

POLICE DEPARTMENT,

Defendants-Respondents.

December 11, 2014

Submitted November 12, 2014 Decided

Before Judges Yannotti, Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6761-08.

Eldridge Hawkins, attorney for appellant.

DeCotiis, Fitzpatrick & Cole, LLP, attorneys for respondents John Feder, James Abbott and John K. Sayers (Jason D. Attwood, of counsel and on the joint brief).

Trenk, DiPasquale, Della Fera & Sodono, P.C., attorneys for respondent Township of West Orange (Richard D. Trenk and Mark Y. Moon, of counsel and on the joint brief).

PER CURIAM

Plaintiff Eldridge Hawkins II appeals from Law Division orders entered on remand dated (1) March 15, 2013 indicating that the sole remaining issue on remand related to disparate pay; (2) April 10, 2013 granting summary judgment to the Township of West Orange, John Feder, James Abbott, and John K. Sayers (collectively referred to as "defendants"); and (3) April 25, 2013 denying plaintiff's motion for summary judgment and dismissing plaintiff's wage discrimination claims under the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49, and the Civil Rights Act ("CRA"), N.J.S.A. 10:6-1 to -2. For the reasons that follow, we affirm.

I.

We have set forth the procedural history and facts of this case in our previous opinion. Hawkins v. Feder, No. A-4004-10 (App. Div. Nov. 15, 2012) (slip op. at 6-12). We briefly summarize the relevant facts to provide context for this opinion.

Plaintiff first filed a complaint in federal court in August 2007, where the judge dismissed plaintiff's federal claims with prejudice, finding them time-barred, and dismissed plaintiff's remaining claims without prejudice. Plaintiff subsequently filed a complaint in the Law Division in August 2008. In 2009, the court dismissed plaintiff's claims sounding in tort and contract. On January 4, 2011, the court dismissed the balance of plaintiff's complaint, finding his remaining claims, which alleged violations of the LAD and the CRA were time-barred by a two-year statute of limitations that commenced upon plaintiff's hiring.

Plaintiff appealed and we affirmed the dismissal of the claims, except for plaintiff's claim of unlawful wage discrimination allegedly in violation of the LAD and CRA. Id. at 4-5. We held that plaintiff could pursue the claim for disparate wages paid during the two-year period prior to the filing of his complaint. Ibid.

In his complaint, plaintiff described himself as "an African American male of brown color." Plaintiff claimed he was paid less than two other West Orange Township police officers, William K. Sayers and Brad Squires, who are both white and of Irish descent. William K. Sayers is also the nephew of Director John Sayers.2 Plaintiff alleged these two officers received preferential treatment over himself and Officers Patrick Matullo III, Michelle Nagle, and John Rolli. Although the police department does not inquire into the ancestry of job applicants, the record indicates that all of the allegedly disfavored officers, including plaintiff, have some degree of Irish ancestry.

Salaries of police officers in West Orange are governed by a collective bargaining agreement which provides, among other things, that persons hired by July 10 are eligible for a salary increase the following January. Officer Sayers was hired in January 2004.3 He received his first incremental step increase in January 2005. Officer Squires was hired on July 9, 2004. He had already completed basic training and had experience as a police officer. Officer Squires also received his first incremental step increase in January 2005.

Plaintiff was hired on July 12, 2004, along with Officers Patrick Matullo and John Rolli. Officer Michelle Nagle was hired on July 23, 2004, after she obtained medical clearance. These officers received their first incremental step increase in January 2006.

Plaintiff claims that his salary differential is the result of unlawful discrimination. He alleges that Officers Sayers and Squires received the January 2005 pay increase because they are white and of Irish ancestry. Plaintiff also claimed that Officer Squires unlawfully received a higher starting salary than himself, and Officers Matullo, Rolli and Nagle.

On remand, defendants renewed their summary judgment motion, which the trial court granted. The motion judge found that plaintiff's claims lacked merit, concluding that he failed to establish a prima facie case under the LAD because there were legitimate, non-discriminatory reasons for the Department's decisions to hire Officers Sayers and Squires before July 10, 2004.

The court further found that there was also a legitimate, non-discriminatory reason to pay Officer Squires a higher salary, as he had completed training and had prior experience as a police officer. The court concluded that plaintiff failed to show that these reasons were merely a pre-text for unlawful discrimination. Finally, the judge found plaintiff failed to establish a claim under the CRA, concluding that plaintiff failed to show he received any disparate treatment from other officers similarly situated. This appeal followed.

II.

On appeal, plaintiff argues that (1) factual issues preclude summary judgment in favor of defendants; (2) defendants' violated the "Rule of Three" thereby proving plaintiff's case under the CRA; (3) defendants' failure to enact proper ordinances authorizing police directives was illegal; (4) the treatment Officer Sayers received violated the New Jersey Constitution; (5) these ordinance and constitutional violations entitled plaintiff to obtain summary judgment; and (6) plaintiff proved "Irish" and "color" discrimination and is entitled to summary judgment.

Our review of a trial court's grant of summary judgment is de novo and we apply the same standard as the trial court under Rule 4:46-2(c). Oyola v. Xing Lan Liu, 431 N.J. Super. 493, 497 (App. Div.), certif. denied, 216 N.J. 86 (2013). This requires us to "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are 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).

A.

To determine if an employer unlawfully discriminated against a plaintiff under the LAD, the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973), should be used when there is only circumstantial evidence of discrimination. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330-31 (2010). This requires a plaintiff to first establish a prima facie case. Id. at 331 (citing Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 442 (1988)). In a case involving a claim of unlawful wage discrimination, the plaintiff must show by a preponderance of the evidence that other employees performed substantially equal work and were paid more than plaintiff. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1087 (3d Cir. 1996).

Plaintiff asserts that defendants unlawfully discriminated against him because Officers Squires and Sayers received pay increases in January 2005. We disagree and find plaintiff is unable to establish a prima facie case of unlawful discrimination. The record indicates that plaintiff, although the only African-American hired during the relevant time period, was treated similarly to the other officers in his same position and who performed the same work.

Plaintiff failed to establish that other officers in the class that was allegedly shown preferential treatment, were actually given such treatment. See Jason v. Showboat Hotel & Casino, 329 N.J. Super. 295, 305-06 (2000) (affirming summary judgment when a plaintiff did not show a racial pattern in the defendant's disciplinary actions when eight white employees were also terminated for misconduct); Fischer v. Allied Signal Corp., 974 F. Supp. 797, 807 (D.N.J. 1997) (finding no age discrimination under the LAD existed when three out of the five positions plaintiff applied to were filled by someone older than that plaintiff).

Additionally, Officer Squires was lawfully hired pursuant to the "Rule of Three," even though he was appointed before plaintiff. The "Rule of Three" allows the appointing authority discretion to choose from the top three eligible candidates on the list, pursuant to N.J.S.A. 11A:4-8. Plaintiff, Officer Squires, and Officer Rolli were the top three ranked candidates and therefore the appointing authority permissibly appointed Officer Squires. Moreover, Officer Sayers was hired in January 2004, permitting him to receive the increment in January 2005. Even if Officer Sayers received preferential treatment, there is no evidence it was motivated by discrimination under the LAD.

While there was arguably evidence of nepotism, that would not establish a claim in violation of the LAD. See Bumbaca v. Twp. of Edison, 373 N.J. Super. 239, 249 (App. Div. 2004), certif. denied, 182 N.J. 630 (2005) ("[I]t is clear that the term familial status, as defined, does not include the concept of nepotism and, further, plays no role in the statutory definition of an unlawful employment practice.").

B.

Plaintiff also failed to establish a claim under the CRA. The CRA provides in relevant part

Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief.

[N.J.S.A. 10:6-2c.]

This statute applies to federal rights, as well as "substantive rights guaranteed by New Jersey's Constitution and laws." Gormley v. Wood-El, 218 N.J. 72, 97 (2014). Accordingly, the statute "is a means of vindicating substantive rights and is not a source of rights itself." Id. at 98. In order to establish a cause of action under N.J.S.A. 10:6-2c, "a plaintiff must allege a specific constitutional violation." Matthews v. N.J. Inst. of Tech., 717 F. Supp. 2d 447, 452 (D.N.J. 2010).

Here, plaintiff has failed to identify any specific substantive or constitutional rights that were violated by the hiring of Officers Squires and Sayers or their subsequent pay increases. Consistent with the collective bargaining agreement, plaintiff was compensated at the same rate for the same work performed by the other officers at his level, who were also white and Irish.

Plaintiff's remaining argument regarding the legality of the ordinances authorizing police directives exceeds the narrow scope of the limited remand and is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Additionally, since plaintiff has failed to posit a legal argument regarding the March 15, 2013 order indicating the sole remaining issue on remand related to disparate pay, we deem the issue waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived.").

Affirmed.

1 Improperly pled as Jack Sayers.

2 For the remainder of this opinion, we refer to William Sayers as Officer Sayers and his uncle as Director Sayers.

3 Officer Sayers began his service for the Department by training at a police academy in January 2004. During training, he had a medical incident, and was placed on light duty as a communications officer. In July 2004, Officer Sayers was reenrolled in a different academy and graduated about the same time as plaintiff.