J.B. v. CITY OF HOBOKEN
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4440-15T2
J.B., J.J., and D.D.,
Plaintiffs-Appellants,
v.
CITY OF HOBOKEN, MAYOR DAWN ZIMMER,
FIRE CHIEF RICHARD BLOHM, BETTY
MCLENDON, PSY.D., and COMPREHENSIVE
PSYCHOLOGICAL SERVICES, P.A.,
Defendants-Respondents.
_____________________________________
Submitted February 13, 2018 - Decided March 19, 2018
Before Judges Hoffman, Gilson, and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No.
L-1956-14.
Law Office of Donald F. Burke, attorneys for
appellants (Donald F. Burke and Donald F.
Burke, Jr., on the briefs).
Hanrahan Pack, LLC, attorneys for respondents
City of Hoboken and Mayor Dawn Zimmer (David
J. Pack, of counsel and on the brief).
Palumbo Renaud & DeAppolonio LLC, attorneys
for respondent Richard Blohm (Robert F.
Renaud, on the brief).
Marshall Dennehey Warner Coleman & Goggin,
attorneys for respondents Betty McLendon,
Psy.D., and Comprehensive Psychological
Services, P.A. (Walter F. Kawalec, III and
Ryan T. Gannon, on the brief).
PER CURIAM
Plaintiffs J.B., J.D., and D.D. applied to become
firefighters for the City of Hoboken (City). After taking a
written exam, plaintiffs were placed on a list of eligible
candidates for employment as City firefighters. However,
plaintiffs were removed from that list based upon the results of
their psychological evaluations. Plaintiffs filed suit in the
Superior Court of New Jersey alleging violations of the New Jersey
Civil Rights Act (CRA),
N.J.S.A. 10:6-2, and the Law Against
Discrimination (LAD),
N.J.S.A. 10:5-12. By four separate orders,
issued by three different judges, plaintiffs' claims against
defendants were dismissed. Plaintiffs appeal the dismissal of
their claims. We affirm.
The City sought to hire firefighters and asked the Civil
Service Commission (Commission) to conduct written examinations
and compile a list of candidates. Taking the examination with
plaintiffs were the sons of defendant Richard Blohm (Blohm). Blohm
was the City's Fire Chief when plaintiffs took the examination to
become firefighters. Based upon the examination results,
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plaintiffs were placed on a list of eligible candidates. Each
candidate was ranked according to test score. J.J. was ranked
number ten; D.D. was ranked number twenty; and J.B. was ranked
number forty-six. One Blohm son was ranked number twenty-seven
and the other Blohm son was ranked number forty-eight.
The City asked the Commission to certify more candidates from
the eligible list than the actual number of firefighters the City
needed to hire. The City sought a large candidate pool because
some candidates would: (1) take positions with other fire
departments; (2) decide not to become firefighters; or (3) be
removed from the list for other reasons. The Commission then
certified the specified number of eligible candidates by starting
at the top of the list and continuing through the list until the
requested number of candidates was reached. At no time did the
City know the candidates' names or rankings.
Because the City needed to hire twenty-three firefighters,
the Commission certified forty-eight candidates from the eligible
list. That pool of candidates was then required to undergo
additional screening, including background checks, drug screens,
physical examinations, and psychological evaluations.
Because Blohm's sons were on the list of eligible candidates,
defendant Mayor Dawn Zimmer (Zimmer), through the City's
corporation counsel, removed him from the decision making process
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for the selection of City firefighters. Zimmer designated the
City's business administrator and the public safety director to
select the candidates to be hired from those who successfully
completed the screening processes. Blohm was instructed to forward
all information and documents to the City's business administrator
and public safety director, not to strike candidates from the
eligible list, and to provide information on candidates who had
already been removed from the list.
Despite these instructions, plaintiffs contend Blohm was
improperly involved in the screening and selection process for
City firefighters. Plaintiffs claim Blohm conspired to remove
them from the list of eligible candidates so his sons would move
up the list and be hired as City firefighters. According to
plaintiffs, Blohm ordered background checks on the eligible
candidates and created reports on each candidate, except for his
sons, based upon the background checks. Plaintiffs also assert
Blohm contacted defendant Betty McLendon, Psy.D. (McLendon)1 to
schedule psychological evaluations for the candidates, including
plaintiffs. McLendon, a psychologist, evaluates candidates for
1
McLendon is the principal and owner of defendant Comprehensive
Psychological Services, P.A. (Comprehensive).
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civil service jobs and Comprehensive had performed such
evaluations for the City since the mid-1990s.
McLendon conducted psychological evaluations of J.B., J.J.,
and D.D. Each evaluation lasted approximately six hours with
McLendon asking questions designed to determine each candidate's
psychological fitness to perform the duties of a firefighter.
During his evaluation, J.B. told McLendon that he used drugs
in the past, including smoking marijuana daily. He also reported
regularly consuming alcohol. J.B. conveyed to McLendon that his
application to become a City firefighter was based on scheduling
needs and fear of layoffs within the City's police department,
where he was currently employed. McLendon found "[J.B.]'s
attitudes and practices suggest that he has a self-centered outlook
and self[-]serving behaviors and reflect an individual lacking
integrity and character." She noted, "[h]e did not express any
real commitment to serving as a [f]irefighter other than it being
better suited to his scheduling needs." McLendon concluded,
"[J.B.] is psychologically unfit to serve as a [f]irefighter with
the Hoboken Fire Department."
During D.D.'s evaluation, he told McLendon he had $250,000
from winning the lottery and a trust fund. Despite his financial
circumstances, D.D. admitted to approximately $10,000 in
outstanding debt. D.D. explained he worked as a lifeguard during
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the summer and collected unemployment the rest of the year. D.D.
told McLendon it "wasn't worth it" to seek other jobs. In her
evaluation of D.D., McLendon found him to be "lackadaisical" and
"childish." She concluded D.D. was "a highly immature individual
with limited insight and poor judgment" who "has shown a lack of
initiative with respect to assuming responsibilities, as was borne
out by a . . . record of academic underachievement, fiscal
mismanagement and limited employment." McLendon deemed D.D.
"psychologically unfit to serve as a [f]irefighter with the Hoboken
Fire Department."
McLendon's psychological evaluation of J.J. reported that he
possessed "poor judgement, an asocial tendency and disregard for
standards and law." She further found "[J.J.] has demonstrated a
number of maladaptive behaviors reflecting an inability and
failure to understand and adhere to standards. He has exercised
poor judgment, had problems adhering to the law, and has
difficulties fulfilling responsibilities as an employee."
McLendon concluded, "[i]n light of this well[-]established pattern
of significant adjustment issues, as well as his seeming[] lack
of insight, poor judgment and remorse, [J.J.] is deemed to be
psychologically unfit to serve as a [f]irefighter with the Hoboken
Fire Department."
6 A-4440-15T2
As a result of their psychological evaluations, plaintiffs
were removed from the list of eligible candidates to become City
firefighters.
After completing the psychological evaluations, thirteen of
the original forty-eight candidates were hired as City
firefighters. A Blohm son was among the candidates offered a City
firefighter position. Certain individuals were removed from the
list of eligible candidates for various reasons, including finding
employment elsewhere, failing/refusing the drug test, failing the
psychological evaluation, failing to complete the vetting process,
or failing the City's residency requirement. Specifically, the
other Blohm son was removed from the list for failing the residency
requirement. A total of eight candidates, including plaintiffs,
were removed for failing the psychological examination.
In accordance with N.J.A.C. 4A:4-6.5, plaintiffs appealed
their removal from the list of eligible candidates to the
Commission. In their appeal, plaintiffs asked the Commission to
issue document subpoenas regarding other firefighter candidates
whom plaintiffs contended should have been removed from the list
of eligible candidates. The Commission declined to issue
subpoenas, determining that the only relevant issues in
plaintiffs' appeal were their own fitness for the position and
whether they were improperly removed from the list of eligible
7 A-4440-15T2
candidates. Five months after filing their agency appeal,
plaintiffs "requested the[ir] appeals be held in abeyance pending
the outcome of an action to be instituted in the Superior Court."
On April 28, 2014, plaintiffs filed a complaint in the
Superior Court. Due to inactivity on their agency appeal, the
Commission advised that it would take "no further action."
In their Superior Court complaint, plaintiffs alleged
violations of the CRA and LAD. In lieu of filing answers, the
City, Zimmer, and Blohm filed motions to dismiss plaintiffs'
complaint for failure to state a claim upon which relief could be
granted.
On December 1, 2014, the motion judge dismissed plaintiffs'
LAD claims without prejudice, and converted Zimmer's application
to a summary judgment motion. The judge reasoned that plaintiffs
were not disabled to prevail on their LAD claims. In granting
summary judgment in favor of Zimmer, the motion judge found
plaintiffs did not, and could not, allege any activity or
involvement by Zimmer to pursue their claims against her. The
motion judge denied the motions to dismiss filed by the City and
Blohm without prejudice pending the completion of discovery.
McLendon and Comprehensive separately filed a motion to
dismiss the complaint for failure to state a claim. Plaintiffs
cross-moved for leave to amend the complaint, seeking to revive
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their LAD claims alleging discrimination based on a perceived,
rather than actual, disability. Plaintiffs also sought to name
additional City employees as defendants.
The motion judge denied the motion to dismiss filed by
McLendon and Comprehensive without prejudice pending the
completion of discovery. Plaintiffs withdrew their cross-motion
for leave to amend the complaint.
Several months later, plaintiffs filed another motion to
amend their complaint. Plaintiffs sought to amend their LAD claims
to include allegations of discrimination based on a perceived
disability and to name additional City employees as defendants.
The City cross-moved for dismissal of the amended LAD claims.
Blohm, McLendon, and Comprehensive joined in the City's cross-
motion to dismiss plaintiffs' amended LAD claims.
A different motion judge denied plaintiffs' request to add
new defendants, but granted plaintiffs' motion to amend their LAD
claims. The motion judge explained that plaintiffs' amended
complaint would be subject to defendants' pending cross-motions
to dismiss. After plaintiffs filed their amended complaint with
the revised LAD claims, the motion judge granted the cross-motions
filed by the City, Blohm, McLendon, and Comprehensive dismissing
plaintiffs' amended LAD claims with prejudice. In dismissing the
9 A-4440-15T2
amended LAD claims, the judge determined that plaintiffs were not
disabled and were not perceived as disabled by defendants.
Thereafter, Blohm and the City filed motions for summary
judgment on plaintiffs' CRA claims. Around the same time, McLendon
and Comprehensive filed a similar motion for summary judgment.
Plaintiffs filed opposition to defendants' summary judgment
motions and a cross-motion for summary judgment.
A third motion judge ruled on defendants' motions for summary
judgment and plaintiffs' cross-motion for summary judgment. The
motion judge granted defendants' motions for summary judgment and
denied plaintiffs' cross-motion.
On appeal, plaintiffs argue the motion judges erred by: (1)
granting summary judgment in favor of Zimmer prior to the exchange
of discovery; (2) dismissing plaintiffs' LAD claims; (3) denying
plaintiffs' cross-motion for summary judgment; and (4) granting
defendants' motions for summary judgment.
We "review[ ] an order granting summary judgment in accordance
with the same standard as the motion judge." Bhagat v. Bhagat,
217 N.J. 22, 38 (2014). On a motion for summary judgment, the
court must "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
10 A-4440-15T2
party." Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540
(1995). However, "[a] trial court's interpretation of the law and
the legal consequences that flow from established facts are not
entitled to any special deference." Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995). Thus, "[w]hen
the legal conclusions of a trial court on a . . . summary judgment
decision are reviewed on appeal," we conduct a de novo review.
McDade v. Siazon,
208 N.J. 463, 473 (2011).
We agree with the motion judge that plaintiffs' CRA claims
fail as a matter of law because the "merit and fitness" clause of
the Constitution does not constitute a "substantive" right
enforceable under the CRA. We also agree with the motion judge's
determination that the Civil Service Act (CSA),
N.J.S.A. 11A:1-1
to 12-6, and governing regulations require plaintiffs to exhaust
their administrative remedies before filing suit in the Superior
Court.
Plaintiffs argue that the "merit and fitness" clause of the
State Constitution creates a personal, substantive right
enforceable under the CRA. Plaintiffs fail to cite a single case
in support of that proposition. Plaintiffs assert that the CRA
grants a cause of action to "any" person who has been deprived of
"any" substantive right.
11 A-4440-15T2
Article VII of the State Constitution provides that
"[a]ppointments and promotions in the civil service of the State,
and of such political subdivisions as may be provided by law,
shall be made according to merit and fitness to be ascertained,
as far as practicable, by examination, which, as far as
practicable, shall be competitive." N.J. Const. art. VII, § 1,
¶ 2. The CRA provides:
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. 10:6-2(c) (emphasis added).]
Our courts have held that merit and fitness is a guiding
principle, not a substantive right. See, e.g., Hackensack v.
Winner,
82 N.J. 1, 42 (1980) ("A [Commission] hearing is necessary
to insure that the local authority did not violate the 'merit and
fitness' principle."); In re Police Chief (M201P) S. Orange Vill.,
266 N.J. Super. 101, 105 (App. Div. 1993) ("We start our analysis
with certain basic principles in mind. One such principle is the
12 A-4440-15T2
constitutional mandate that '[a]ppointments and promotions in the
civil service of the State . . . shall be made according to merit
and fitness . . . .'" (first alteration in original) (quoting N.J.
Const. art. VII, § 1, ¶ 2)). New Jersey courts have rejected
constitutional due process claims asserted by civil service
applicants who allege they were improperly rejected for employment
positions. See In re Foglio,
207 N.J. 38, 44-45 (2011) ("No right
accrues to a candidate whose name is placed on an eligible list.
'The only benefit inuring to such a person is that so long as that
list remains in force, no appointment can be made except from that
list.'" (citation omitted) (quoting In re Crowley,
193 N.J. Super.
197, 210 (App. Div. 1984)). Relying on these cases, we find as a
matter of law that the merit and fitness clause of the State
Constitution does not afford a substantive individual right under
the CRA.
Plaintiffs rely on Hennessey v. Winslow Township,
183 N.J.
593 (2005) in claiming that an individual, substantive right to
be appointed in accordance with "merit and fitness" principles is
enforceable under the CRA. However, the plaintiff in Hennessey
asserted a LAD claim, not a CRA violation. Hennessey,
183 N.J.
at 598. The distinction is significant as the LAD expressly
authorizes litigation in the Superior Court. See
N.J.S.A. 10:5-
13 ("Any complainant may initiate suit in Superior Court under
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this act without first filing a complaint with the division or any
municipal office . . . . Prosecution of such suit in Superior
Court under this act shall bar the filing of a complaint with the
division or any municipal office during the pendency of any such
suit.").
Even if the merit and fitness clause created a substantive
right, plaintiffs' claims fail because the CSA and regulations
promulgated thereunder, N.J.A.C. 4A:1-1 to 10-3.2, require
plaintiffs to exhaust their administrative remedies before filing
suit. Our Supreme Court has held that the Legislature may
"specifically foreclose[]" a remedy under the CRA "either
expressly 'or impliedly, by creating a comprehensive enforcement
scheme that is incompatible with individual enforcement.'"
Tumpson v. Farina,
218 N.J. 450, 475 (2014) (alteration in
original) (quoting Blessing v. Freestone,
520 U.S. 329, 341
(1997)). The Legislature created a highly specialized
administrative scheme to enforce the merit and fitness clause. It
is unlikely that the Legislature intended to let civil service
applicants bypass the administrative process when the only claims
are violations of the CSA and its regulations. See Ferraro v.
City of Long Branch,
314 N.J. Super. 268, 286 (App. Div. 1998)
("[W]e do not read the New Jersey statutes and rules which protect
civil servants and classified public employees to suggest that
14 A-4440-15T2
their breach may give rise to a suit for money damages as opposed
to administrative relief.").
The proper course of action for parties aggrieved by an
alleged violation of the CSA is to refer those parties to the
administrative agency for initial determination as a matter of
primary jurisdiction. See In re Police Sergeant (PM3776V),
176 N.J. 49, 67 (2003) ("The State Constitution and the Civil Service
Act charge the [Commission] . . . with primary jurisdiction in
these matters."). We follow the Supreme Court's reasoning on this
issue. See, e.g., Ferraro,
314 N.J. Super. at 287 (affirming
dismissal of complaint alleging violations of the Civil Service
Act regulations "for failure to exhaust administrative remedies,"
and noting further that "the breach of administrative regulations
does not of itself give rise to a private cause of action"); Essex
Council Number 1, N.J. Civil Service Assoc., Inc. v. Gibson,
118 N.J. Super. 583, 586 (App. Div. 1972) (holding administrative
remedies "should be exhausted before a determination of law is
reached"); Schroder v. Kiss,
74 N.J. Super. 229, 237 (App. Div.
1962) (affirming dismissal of complaint where "[p]laintiff's
proper remedy was an administrative appeal to the Civil Service
Commission, followed by possible review by the Appellate
Division"); Capibianco v. Civil Serv. Comm'n,
60 N.J. Super. 307,
314 (App. Div. 1960) (approving the trial court's decision
15 A-4440-15T2
"requiring plaintiff to exhaust his administrative remedies before
the Commission").
Plaintiffs are not exempt from the requirement to exhaust
their administrative remedies. Plaintiffs dispute their removal
from the list of eligible candidates based upon the results of
their psychological evaluations. The regulations under the CSA
set forth a detailed administrative process for exactly the type
of claim asserted by plaintiffs in this case. See N.J.A.C.
4A:4-6.5. Plaintiffs filed an appeal with the Commission.
However, plaintiffs abandoned that review process and, instead,
filed suit in the Superior Court while their appeal to the
Commission was still pending. Because plaintiffs failed to exhaust
their administrative remedies before the Commission, their
Superior Court complaint was properly dismissed as a matter of
law.
Turning to dismissal of plaintiffs' LAD claims, we find that
plaintiffs failed to allege any actual or perceived disability
entitling them to pursue LAD claims. Plaintiffs concede they are
not actually disabled. Rather, plaintiffs contend the results of
their psychological evaluations gives rise to a perceived
disability claim premised on defendants perceiving plaintiffs as
having a physical or mental condition that would qualify the person
as disabled under LAD if the condition actually existed. See
16 A-4440-15T2
Heitzman v. Monmouth Cty.,
321 N.J. Super. 133, 142 (App. Div.
1999), overruled in part on other grounds by Cutler v. Dorn,
196 N.J. 419 (2008)).
McLendon's reports do not declare that plaintiffs suffer from
any psychological disability. Consequently, plaintiffs are left
to argue that defendants used the psychological evaluations as a
pretext for removing them from the list of eligible candidates.
Such an argument undermines plaintiffs "perceived disability"
claim based on defendants' mistaken belief that plaintiffs were
psychologically disabled.
Moreover, LAD expressly allows for the imposition of bona
fide occupational job qualifications. See
N.J.S.A. 10:5-2.1. In
accordance with the regulations governing the CSA, "[a] person may
be denied examination eligibility or appointment when he or she:
. . . [i]s . . . psychologically unfit to perform effectively the
duties of the title." N.J.A.C. 4A:4-6.1(a)(3). The regulations
expressly provide that "[a]n appointing authority may request that
an eligible's name be removed from an eligible list due to
disqualification for medical or psychological reasons which would
preclude the eligible from effectively performing the duties of
the title." N.J.A.C. 4A:4-6.5(a). Consistent with the CSA's
regulations, plaintiffs were removed from the eligible list of
17 A-4440-15T2
candidates based on McLendon's evaluations deeming them
"psychologically unfit" to serve as City firefighters.
We also find the dismissal of plaintiffs' claims against
Zimmer was proper. Because the City operates under a mayor-council
form of government, the City's business administrator, not its
mayor, is responsible for administering personnel matters.
Plaintiffs failed to demonstrate Zimmer had any role in the process
of hiring City firefighters. In addition, plaintiffs' claim that
summary judgment in favor of Zimmer was premature because of
incomplete discovery is moot based upon our affirming dismissal
of plaintiffs' CRA and LAD claims as a matter of law.
Affirmed.
18 A-4440-15T2
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