JAMES COLLINS v. STEVENS INSTITUTE OF TECHNOLOGY
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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
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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
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(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.
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[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
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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).]
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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
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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.
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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.
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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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