JOHN WALSIFER v. BOROUGH OF BELMAR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOHN WALSIFER,

Plaintiff-Appellant,

v.

BOROUGH OF BELMAR & THE

DEPARTMENT OF PUBLIC SAFETY FOR

THE BOROUGH OF BELMAR, DIVISION

OF POLICE, d/b/a THE POLICE

DEPARTMENT FOR THE BOROUGH OF

BELMAR, and THE MAYOR & COUNCIL

FOR THE BOROUGH OF BELMAR & ITS

MEMBERS, in their official

capacities,

Defendants-Respondents.

________________________________

November 1, 2016

Argued October 11, 2016 - Decided

Before Judges Reisner, Koblitz and Rothstadt.

On appeal from Superior Court of New Jersey, Civil Division, Monmouth County, Docket No. L-3612-12.

Jeffrey D. Catrambone argued the cause for appellant (Sciarra & Catrambone, LLC, attorneys; Mr. Catrambone, of counsel and on the brief).

Lori A. Dvorak argued the cause for respondents (Dvorak & Associates, attorneys; Ms. Dvorak, of counsel; Kurt J. Trinter and Patrick J. Nemes, on the brief).

PER CURIAM

Plaintiff John Walsifer appeals from an April 24, 2015 order, denying plaintiff's motion to bar defendants' presentation of evidence, and a second April 24, 2015 order dismissing his complaint on summary judgment. We affirm.

In 2011, plaintiff, who was nineteen years old at the time, applied for a Civil Service position as a police officer in the Borough of Belmar. Plaintiff was one of the top three candidates on the Civil Service list. Erik Lieb, a veteran, was ahead of plaintiff on the list, and Michael Yee, who was already serving as a special police officer with the Borough, was below plaintiff on the list.1 The Borough, which had two vacancies to fill, appointed Lieb and Yee in December 2011, and did not appoint plaintiff. Plaintiff's complaint focused on the decision to appoint Yee.

Plaintiff claimed that the Borough failed to hire him because his two uncles, Mark and Nicholas Walsifer, already worked for the Belmar Police Department. He contended that this constituted discrimination based on "ancestry" and "disparate impact" in violation of the New Jersey Law Against Discrimination (LAD). See N.J.S.A. 10:5-4; N.J.S.A. 10:5-12(a). However, plaintiff admitted that his use of the term "ancestry" had nothing to do with his uncles' race, religion, national origin or ethnic background, but merely their family relationship to him.

Plaintiff also asserted that the Borough retaliated against him in violation of the LAD because the uncles had filed lawsuits against the Borough in 2002 and 2004. See N.J.S.A. 10:5-12(d). Plaintiff further alleged that the Borough's failure to hire him violated his rights under the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-2. However, plaintiff produced no proof that either of his uncles had complained about any LAD violations. Nor did he produce evidence that either uncle had filed a complaint asserting rights under the NJCRA.2 At his deposition, plaintiff admitted that he had no involvement in his uncle's lawsuits, which were filed when he was a child. He also admitted that he had no relationship with his uncle Mark, with whom plaintiff's immediate family was not on speaking terms.

The Borough denied any retaliatory intent and produced legally competent evidence that Lieb was hired because he was entitled to veteran's preference and Yee was hired because he was more qualified than plaintiff. In particular, the Borough produced undisputed evidence that Yee had been serving as a special police officer for several years, already had police training and was authorized to carry a service weapon, and could begin work as a regular police officer immediately. This was important because the police department was short-handed at the time.

The Borough gave a hiring preference to Belmar residents. Plaintiff, who lived in Belmar, questioned whether Yee was a Borough resident. However, the Borough produced evidence that Yee had been a Belmar resident since 2010. Plaintiff moved to strike that evidence as having been produced untimely. The trial judge denied the motion. He reasoned that the Borough had served the pertinent document before the discovery end date, together with a certification of due diligence explaining why it could not have been produced earlier, and plaintiff did not file a timely challenge to the certification.3

In granting the summary judgment motion, the trial judge concluded that plaintiff's evidence could not support a claim under the LAD. The judge reasoned that

the ancestry language in the LAD does not apply to "genealogical succession" or "line of descent," and is instead meant to encompass "racial, religious, ethnic or national ancestry." See Whateley v. Leonia Board of Education, 141 N.J. Super. 476, 480 (Ch. Div. 1976). Thus Plaintiff cannot bring a direct claim under the LAD alleging he was discriminated [against] because of his uncles' lawsuit[s]. Plaintiff is also unable to bring a claim under the LAD's retaliatory provisions because there is no evidence in the record that Plaintiff supported his uncles' lawsuits, nor that his uncle's lawsuits arose under the LAD. See N.J.S.A. 10:5-12d; Craig v. Suburban Cablevision, 140 N.J. 623, 629-30 (1995).

The judge also reasoned that plaintiff failed to establish a constitutional violation, for purposes of a NJCRA claim, because he had no vested right to the job. He further found that the Borough had produced evidence of a legitimate reason for the decision to hire Yee.

We review the judge's ruling on the discovery motion for abuse of discretion. State v. Enright, 416 N.J. Super. 391, 404 (App. Div. 2010), certif. denied, 205 N.J. 183 (2011). Our review of the trial judge's summary judgment decision is de novo, employing the Brill4 standard. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014). We find no abuse of the judge's discretion in denying plaintiff's motion to strike defendant's evidence that Yee was a Belmar resident. Moreover, after reviewing the record de novo, we conclude that summary judgment was properly granted.

It is well established that the term "ancestry" in the LAD does not refer to a mere family connection but refers to national origin, religion, or racial or ethnic background. Whateley, supra, 141 N.J. Super. at 480; see also Bluvias v. Winfield Mut. Housing, 224 N.J. Super. 515, 526 (App. Div. 1988), app. dismissed, 114 N.J. 589 (1989); Thomson v. Sanborn's Motor Express, Inc., 154 N.J. Super. 555, 561 (App. Div. 1977). Plaintiff's complaint was not based on his uncles', or his, ancestry, as that term is used in the LAD.

We also agree with the trial court that Craig v. Suburban Cablevision, supra, does not support plaintiff's LAD reprisal claim. The LAD prohibits employers from retaliating

against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.

[N.J.S.A. 10:5-12(d).]

Craig interpreted this section as protecting family members of a LAD complainant from being fired, either because they supported their relative's assertion of LAD rights or because the employer fired them as a way of exerting coercion against the complainant. Craig, supra, 140 N.J. at 630-31. In this case, plaintiff's uncles did not file LAD complaints; nor did plaintiff "aid[] or encourage[]" his uncles in pursuing LAD claims. N.J.S.A. 10:5-12(d). Plaintiff's arguments on the LAD issue are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Plaintiff's related claim - that he was subjected to reprisals in violation of the NJCRA because his uncles asserted constitutionally-based civil rights causes of action in their lawsuits - was also properly dismissed.5 As previously noted, plaintiff did not even provide a copy of Nicholas's complaint or Mark's 2002 complaint. Mark's 2004 complaint alleged that he was denied a promotion based on his perceived political affiliation or activities. See Montone v. Jersey City, 709 F.3d 181, 199-200 (3d Cir. 2013) (recognizing a 1983 cause of action for co-workers who were indirectly injured by an employer's politically-motivated reprisal against a fellow employee). However, there was no evidence that plaintiff, whose family was alienated from Mark, had provided any support for Mark's assertion of his civil rights. Nor was there legally competent evidence that the Borough's failure to hire plaintiff was intended as a reprisal against Mark.

Moreover, the Borough produced legally competent evidence of a legitimate reason for hiring Yee, based on his service as a special police officer since 2006 and his immediate readiness to serve as a regular officer. Plaintiff produced no evidence that he had similar qualifications. On this record, no "rational factfinder" could conclude that the Borough's asserted reason for hiring Yee was a pretext for unlawful retaliation. Brill, supra, 142 N.J. at 540.

Affirmed.

1 There were other candidates at the top of the list, but some were disqualified, leaving Lieb, plaintiff, and Yee as the top three candidates for purposes of the Civil Service Rule of Three.

2 Plaintiff's appendix does not include Nicholas's 2002 complaint. It does include Mark's 2004 complaint, which asserted claims under 42 U.S.C.A. 1983, but did not assert any forms of discrimination that would fall within the purview of the LAD. All of the uncles' complaints were settled years before plaintiff applied to the police department. Plaintiff contended that Mayor Doherty, who took office in January 2011 and was not the mayor when the uncles' lawsuits were pending, nonetheless made the decision not to hire him due to animus over the lawsuits. At his deposition, Mayor Doherty denied that allegation and testified that Mark was promoted to the position of sergeant during his tenure.

3 Plaintiff did not depose Yee and did not file a motion to extend discovery for that purpose.

4 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

5 On this appeal, plaintiff presents his NJCRA claim more clearly than he did in the trial court.