JAMES COLLINS v. STEVENS INSTITUTE OF TECHNOLOGY

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NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
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        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-1479-16T3

JAMES COLLINS,

        Plaintiff-Appellant,

v.

STEVENS INSTITUTE OF TECHNOLOGY
and TIMOTHY GRIFFIN,

        Defendants-Respondents.

_________________________________

              Submitted November 29, 2017 – Decided January 3, 2018

              Before Judges Nugent and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Docket No. L-
              2153-15.

              Henry F. Wolff, III, attorney for appellant.

              Saiber, LLC, attorneys for respondents (Sean
              R. Kelly and Vincent C. Cirilli, on the
              brief).

PER CURIAM

        Plaintiff, a campus police officer who is not a United States

citizen, appeals from the order that dismissed for failure to

state a cause of action his amended complaint alleging defendants
breached his employment contract, violated public policy, and

violated several anti-discrimination statutes when they terminated

his employment.     He contends defendants' purported reason for

terminating him — he is not a United States citizen — is a pretext

for their discriminatory motives, because citizenship is not a

prerequisite for a campus police officer employed by a private

educational institution, as evidenced by relevant authorities'

knowledge of his citizenship status when he applied for the job

and throughout his career.   We agree the trial court should not

have dismissed plaintiff's complaint in its entirety on the limited

record before it.    We affirm the trial court's dismissal of the

complaint's count alleging a violation of public policy. We vacate

the order of dismissal as to the remaining counts and remand for

further proceedings.

     Plaintiff's amended complaint alleged these facts. Plaintiff

immigrated to the United States in January 1992, having married a

United States citizen the previous October. Shortly after arriving

in the United States, plaintiff began employment as a security

officer with Stevens Institute of Technology (Stevens), a private

university located in the City of Hoboken.

     When plaintiff began his employment with Stevens, he was a

citizen of Ireland, had resided in London, and had served in the



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British   Army    during   the   Falklands    War.     He   also   had     prior

experience in law enforcement.

     In 1993, the year after plaintiff began working for Stevens,

a position for campus police officer became available.              Stevens'

Police Chief encouraged plaintiff to apply for the position.

Plaintiff applied, Stevens offered him a job as a patrolman, and

plaintiff   accepted.        After   accepting   the   position,   plaintiff

fulfilled a job requirement by successfully completing training

at the Essex County Police Academy in June 1993.

     According to the amended complaint:

                 At all pertinent times plaintiff was a
            resident alien of the United States and held
            a 'Green Card' as well as all other required
            working papers.    The facts of plaintiff's
            immigration status were fully set forth on all
            applications, and employment papers filed with
            Stevens and was in any event well known to
            personnel within the Campus Police Department,
            including but not limited to [the] Chief
            . . . as well as the City of Hoboken Police
            Department.

     In   1996,    Stevens    discharged     plaintiff,     purportedly       for

reasons related to his job performance.          Plaintiff filed a lawsuit

contending his discharge violated the New Jersey Law Against

Discrimination (LAD), 
N.J.S.A. 10:5-1 to -49.               Two years later,

the parties settled the lawsuit and plaintiff later returned to

employment as a Patrolman with the Campus Police Department.

Plaintiff alleges that when he was reinstated, he "[i]mplicitly

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and explicity . . . was no longer an at[-]will employee and,

therefore, could only be discharged for cause."          Plaintiff further

alleges    that   as   part   of   his   re-employment   process   he     again

completed application forms in which he disclosed his immigration

status, which was well known to the Police Chief who held that

office at the time.

     Defendant Griffin, a former Investigator with the Hudson

County Prosecutor's Office, became Chief of Campus Police in May

2007.     Plaintiff alleges Griffin encouraged him to apply for the

position as Deputy Chief.          Plaintiff became the Deputy Chief of

Police in 2007. While employed in that position, he twice received

a president's citation for excellence.           He also received a good

conduct award, honorable service award, service commendation, and

an excellent service award.

     Plaintiff further alleges that in 2008, Griffin began the

practice of hiring retired municipal police officers to fill

openings for Campus Police Department positions. These officers,

like Griffin, had twenty-five years in a State Retirement System.

According to plaintiff, in all such cases, the persons hired were

receiving pension benefits and therefore could not work in the

public sector and still receive these benefits.

     The complaint identified former police officers who were

hired at Stevens.      Plaintiff alleged employment at Stevens enabled

                                         4                              A-1479-16T3
the retirees to continue to receive pension benefits while earning

new retirement benefits from Stevens.        Younger officers allegedly

referred to Stevens as "a retirement home for ex[-]cops."

     Plaintiff claims defendant Griffin's hiring practice and

favoritism resulted in his termination. In 2013, defendant Griffin

wanted to hire his best friend, or one of his best friends, from

the Hudson County Prosecutor's Office.           There was no opening

available in the Stevens Campus Police Department, so Griffin

allegedly began looking for a way to terminate plaintiff.           First,

Griffin began to undermine plaintiff's position.           The complaint

enumerates   eight     practices   Griffin   allegedly   engaged    in    to

accomplish that purpose. In addition to these practices, plaintiff

claims Griffin created a hostile work environment by commencing

an internal affairs investigation of plaintiff for the sole reason

of terminating him to create a position for Griffin's friend.

Plaintiff also claims the internal affairs report was publicly

disseminated within the department and disclosed plaintiff "was a

resident alien, a fact well known to defendant, Griffin."

     On   April   3,   2014,   Stevens   suspended   plaintiff   from    his

position as Deputy Chief on the grounds that he was not a United

States citizen.    Stevens cited 
N.J.S.A. 40A:14-122, a statute that

contains requirements for municipal police departments. Plaintiff



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alleges this reason was "demonstratively false as the statute

applies only to police working in the public sector."

     Stevens   allegedly   told   plaintiff   the   question   of   his

citizenship was being reviewed by the Attorney General's Office.

Plaintiff asserts this was false "as it had been predetermined

that plaintiff would be terminated."     On May 24, 2014, plaintiff

attended a meeting with the head of the Stevens Human Resources

Department. Plaintiff advised those present of the hiring policies

of Stevens with respect to retired police officers.            He also

alleged the Campus Police Department was being run for the benefit

of such officers.     Plaintiff was terminated the same day.          He

claims he was offered a $32,000 severance package or a six-month

job in the maintenance department conditioned on his executing a

release from any cause of action arising out of his discharge.        He

rejected the offer.

     In May 2015, plaintiff filed a complaint in the Law Division

and alleged, among other causes, claims under both federal and

state employment discrimination laws.     After defendants removed

the action to federal court based on federal question jurisdiction,

plaintiff amended the complaint, removed all federal causes of

action, and successfully moved to remand the matter to the Law

Division.   Following remand, defendants filed a motion to dismiss



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under Rule 4:6-2(e) for failure to state a claim upon which relief

can be granted.          The trial court granted the motion.

      The amended complaint alleged defendants violated public

policy, the Conscientious Employee Protection Act, 
N.J.S.A. 34:19-

1 to -14, and the LAD.           The amended complaint also alleged Stevens

breached its contract with plaintiff and defendants harassed him

and inflicted upon him severe emotional distress.

      In support of his "public policy" claim, plaintiff alleged

the attrition of youthful police officers at Stevens and their

replacement       with    retired     municipal    officers       created      an   aging

police force overly-populated with officers past their retirement

age   and   not    capable     of    handling     the    rigors    of     police    work.

Plaintiff further alleged his discharge and the hiring of another

retiree     "worsened      the      imbalance,"    and        continued    a    practice

"detrimental       to    the   law   enforcement        and    safety     at   Stevens."

Lastly, plaintiff alleged the hiring of retired officers "for the

purpose of their continuing receipt of [public pension] benefits

is in violation of the [p]ublic [p]olicy of this State since it

creates an atmosphere of 'cronyism.'"

      The trial court first determined plaintiff's complaint failed

to state a cause of action for violation of public policy.                            The

court commented it was "a great benefit to our state colleges, our

universities that we have the retired officers available."                            The

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court found, based on its own experience, that retired officers

were "more fit to police college students, then perhaps younger

gentlemen and ladies coming right out of the academy."                      Noting

"[t]here's   no     replacement   for   wisdom     and      experience    in    that

regard," the court dismissed the amended complaint's public policy

count.

     Concerning the complaint's remaining counts, the trial court

stated, without any analysis, that 
N.J.S.A. 40A:14-122 – the

statute containing requirements for municipal police officers –

imposes a citizenship requirement.             From that premise, the trial

court    reasoned    plaintiff    was       required   to    show   he    met    the

requirements of the position.               The trial court concluded that

because plaintiff was not a citizen, "he [could not] meet the

requirement of the position."                The court granted defendants'

dismissal    motion.        Plaintiff         appealed      from    the   court's

implementing order.

     Our review of a trial court's order dismissing a complaint

under Rule 4:6-2(e) is plenary.             Gonzalez v. State Apportionment

Comm'n, 
428 N.J. Super. 333, 349 (App. Div. 2012).                  We apply the

same standard as the trial judge.             Malik v. Ruttenberg, 
398 N.J.

Super. 489, 494 (App. Div. 2008).

     A motion to dismiss a complaint under Rule 4:6-2(e) "must be

based on the pleadings themselves."            Roa v. Roa, 
200 N.J. 555, 562

                                        8                                  A-1479-16T3
(2010).   For purposes of the motion, the "complaint" includes the

"exhibits attached to the complaint, matters of public record, and

documents that form the basis of a claim."    Banco Popular N. Am.

v. Gandi, 
184 N.J. 161, 183 (2005) (quoting Lum v. Bank of Am.,


361 F.3d 217, 221 n.3 (3d Cir. 2004)).     If "matters outside the

pleading are presented to and not excluded by the court, the motion

shall be treated as one for summary judgment."   R. 4:6-2.

     A motion to dismiss "should be granted only in rare instances

and ordinarily without prejudice."    Smith v. SBC Commc'ns, Inc.,


178 N.J. 265, 282 (2004).     This standard "is a generous one."

Green v. Morgan Props., 
215 N.J. 431, 451 (2013).

           [A] reviewing court "searches the complaint
           in depth and with liberality to ascertain
           whether the fundament of a cause of action may
           be gleaned even from an obscure statement of
           claim, opportunity being given to amend if
           necessary."   Di Cristofaro v. Laurel Grove
           Mem'l Park, 
43 N.J. Super. 244, 252 (App. Div.
           1957).    At this preliminary stage of the
           litigation the Court is not concerned with the
           ability of plaintiffs to prove the allegation
           contained in the complaint.     Somers Constr.
           Co. v. Bd. of Educ., 
198 F. Supp. 732, 734
           (D.N.J. 1961). For purposes of analysis
           plaintiffs are entitled to every reasonable
           inference of fact. Independent Dairy Workers
           Union v. Milk Drivers Local 680, 
23 N.J. 85,
           89 (1956). The examination of a complaint's
           allegations   of   fact    required   by   the
           aforestated principles should be one that is
           at once painstaking and undertaken with a
           generous and hospitable approach.



                                 9                           A-1479-16T3
              [Printing Mart-Morristown v. Sharp               Elec.
              Corp., 
116 N.J. 739, 746 (1989).]

      Nonetheless, a court must dismiss a complaint if it fails "to

articulate a legal basis entitling plaintiff to relief."                 Sickles

v. Cabot Corp., 
379 N.J. Super. 100, 106 (App. Div. 2005).                      "A

pleading should be dismissed if it states no basis for relief and

discovery would not provide one."             Rezem Family Assocs. v. Borough

of Millstone, 
423 N.J. Super. 103, 113 (App. Div. 2011); see,

e.g., J.D. ex rel. Scipio-Derrick v. Davy, 
415 N.J. Super. 375,

398   (App.    Div.    2010)   (dismissing      with   prejudice   a   complaint

challenging statutes governing funding of charter schools); Cty.

of Warren v. State, 
409 N.J. Super. 495, 503, 515 (App. Div. 2009)

(dismissing complaint challenging constitutionality of Highlands

Act).

      On appeal, plaintiff does not address the trial court's

reliance on its experience or the reasons — other than citizenship

— the court dismissed the complaint's public policy count. Because

plaintiff     has     not   briefed   these    issues,   we   conclude   he   has

abandoned his appeal on his claim that his termination violated

public policy.         See Zabonick v. Leven, 
340 N.J. Super. 94, 103

(App. Div. 2001) (citing Carter v. Carter, 
318 N.J. Super. 34, 42

n. 8 (App. Div. 1999) (noting a litigant who presents no argument




                                       10                                A-1479-16T3
relating to an issue must be considered to have abandoned the

issue on appeal)).

     We turn to the complaint's remaining counts.               As noted, the

trial court dismissed the remaining claims after finding 
N.J.S.A.

40A:14-122, which applies to municipal police departments, was

controlling.     On appeal, plaintiff contends the trial court erred

by applying a Title 40A requirement to a person appointed to a

private educational institution's police force under the authority

of Title 18A, which contains no such citizenship requirement.

Plaintiff asserts there is no precedent that "even suggests that

Title 40A and Title 18A should be read in pari materia." Plaintiff

further    suggests    defendant's        argument   would      require    the

incorporation into Title 18A of other provisions of Title 40A

concerning municipal police departments, including such things as

minimum salary requirements.

     Defendants    argue   "Title    18A    repeatedly    and    consistently

reflects   the   legislature's      intention   to   hold    campus    police

officers   to    the   same   high    standards      of   eligibility      and

qualification as municipal officers."            The qualifications are

found in 
N.J.S.A. 18A:6-4.3, which states:

           All applications shall, in the first instance,
           be made to the chief of police of the
           municipality in which the institution is
           located, except that where the municipality
           does not have an organized full time police

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           department or where the institution is located
           within more than one municipality, application
           shall be made to the Superintendent of State
           Police.   The   chief   of   police   or   the
           superintendent, as the case may be, shall
           investigate and determine the character,
           competency, integrity and fitness of the
           person   or   persons    designated   in   the
           application. If the application is approved
           by the chief of police or the superintendent,
           the approved application shall be returned to
           the institution which shall issue a commission
           to the person appointed, a copy of which shall
           be filed in the office of the superintendent
           and with the chief of police of the
           municipality or municipalities in which such
           institution is located.

     Defendants    also   cite     
N.J.S.A.   18A:6-4.4,    which   requires

persons appointed as police officers for educational institutions,

"within 1 year of the date of . . . commission, [to] successfully

complete   a   police   training    course    at   a   school   approved   and

authorized by the Police Training Commission."

     Lastly, defendants cite 
N.J.S.A. 52:17B-69.1, which provides:

                A person who does not hold a probationary
           or temporary appointment as a police officer,
           but who is seeking such an appointment may
           enroll in a police training course provided
           that person:

                 (1)      meets     the      general
                 qualifications for a police officer
                 set forth in N.J.S. 40A:14-122 and
                 such other qualifications as the
                 commission may deem appropriate
                 . . . .

                 [N.J.S.A. 52:17B-69.1(a).]


                                     12                               A-1479-16T3
As previously noted, one such requirement for the position of a

municipal police officer is citizenship.

     Defendants' arguments are not immediately persuasive.                    The

provisions of Title 18A authorizing educational institutions to

appoint police contain no citizenship requirement.                   Defendants

attempt   to   selectively      incorporate         into   Title   18A   several

provisions of Title 40A.            Their attempt to do so is a somewhat

strained and circuitous route to a result the Legislature could

have achieved by simply stating the citizenship requirement in

Title   18A,   as   it   did   in    Title   40A.      Moreover,    defendants'

contentions are arguably not supported by either the context of

the Title 40A provisions pertaining to municipal police officers

or the related definitional sections.

     The training statute cited by defendants — 
N.J.S.A. 52:17B-

69.1(a) — is preceded by a definitional section that defines police

officer to mean "any employee of a law enforcement unit." 
N.J.S.A.

52:17B-67.      This     definition     includes      enumerated    classes     of

officers, such as sheriff's officers and county investigators, but

does not include officers employed by educational institutions

appointed under the authority of Title 18A.                Ibid.   The term "law

enforcement unit" is specifically defined to mean "any police

force or organization in a municipality or county which has by

statute or ordinance the responsibility of detecting crime and

                                       13                                A-1479-16T3
enforcing the general criminal laws of this State."              Ibid.     Thus,

plaintiff's arguments — that the Title 40A provisions concerning

municipal      police   departments,    and    the   training    requirements

related to those requirements, do not apply to officers appointed

by private educational institutions — may have merit.

       We nonetheless decline to decide the issue on this scant

record.    According to plaintiff's complaint, he "fully set forth"

his citizenship status "on all applications, and employment papers

filed with Stevens," and his citizenship status "was in any event

well   known    to   personnel   with    the   Campus   Police   Department,

including but not limited to [the Chief] as well as the City of

Hoboken Police Department."         Giving the complaint the liberal

reading required under our standard of review, these allegations

suggest the chief of police of the municipality in which Stevens

was located investigated plaintiff's application and determined

he was fit for the position, as required by 
N.J.S.A. 18A:6-4.3.

The allegations also suggest the authorities were aware of his

citizenship status when he underwent required training.

       In addition, after his appointment, plaintiff filed an action

alleging Stevens violated the LAD by terminating his employment.

As a result of that action, plaintiff was reinstated.                Nothing

before us reveals why plaintiff was reinstated to his position if

citizenship was a disqualifying factor.

                                    14                                   A-1479-16T3
     The   allegations   in   the   pleadings   raise   numerous   issues,

including: whether the State Police and local police departments,

and specifically the officer who acted on plaintiff's employment

application, interpreted the qualifications for an educational

institution's police force to be identical to those qualifications

for a municipal police force; if not, why not; if so, and if

plaintiff disclosed his citizenship status, why his application

was nonetheless approved; why, if his citizenship status was both

known and disqualifying, he was approved for police training in

view of his non-citizenship; why he was reinstated to his position

after his LAD action; and why, after sixteen years of inaction,

defendants suddenly decided to attempt to terminate him based on

a citizenship requirement derived from a debatable legal argument.

Discovery concerning these issues may implicate issues of waiver

or estoppel.   Discovery may also shed light on the interpretation

given to the relevant statutes and regulations by the various

agencies involved.

     We note defendants' assertion they conferred with the New

Jersey Attorney General's Office before concluding plaintiff was

ineligible to serve as a campus officer.          That assertion is of

little value on this record, which does not include any analysis

or opinion from the Attorney General's Office.



                                    15                             A-1479-16T3
     Defendants    also     make   numerous   arguments    concerning    the

amended complaint's failure to state a cause of action on those

counts other than that alleging a violation of public policy.

These matters were not addressed by the trial court and therefore

we decline to address them on this record.

     For the foregoing reasons, we affirm the dismissal of the

complaint's count alleging a violation of public policy. We vacate

the dismissal order as to the remaining counts and remand the

matter for discovery and further proceedings.         Plaintiff shall be

entitled   to   discovery    before    defendants   file   any   additional

dispositive motions.

     Affirmed in part, vacated in part, and remanded for further

prodeedings.    We do not retain jurisdiction.




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